[Cite as Family Med. of Stark Cty., Inc. v. Smart, 2017-Ohio-5866.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                              JUDGES:
FAMILY MEDICINE OF STARK                              :       Hon. Patricia A. Delaney, P.J.
COUNTY, INC. ET AL                                    :       Hon. W. Scott Gwin, J.
                                                      :       Hon. Earle E. Wise, J.
                      Plaintiffs-Appellants           :
                                                      :
-vs-                                                  :       Case No. 2016CA00218
                                                      :
MORESETTA SMART, ET AL                                :
                                                      :       OPINION
                   Defendants-Appellees




CHARACTER OF PROCEEDING:                                  Civil appeal from the Stark County Court of
                                                          Common Pleas, Case No. 2015CV01377


JUDGMENT:                                                 Affirmed




DATE OF JUDGMENT ENTRY:                                   July 17, 2017




APPEARANCES:

For Plaintiffs-Appellants                                      For Defendants-Appellees

J. MICHAEL GATIEN                                              DONALD GALLICK
2371 Chestnut Hill Street N.W.                                 190 North Union Street, #102
North Canton, OH 44720                                         Akron, OH 44304
Stark County, Case No. 2016CA00218                                                       2

Gwin, J.,

      {¶1}   Appellant appeals the October 20, 2016 magistrate’s decision and the

November 8, 2016 judgment entry confirming the magistrate’s decision of the Stark

County Court of Common Pleas.

                                   Facts & Procedural History

      {¶2}   On July 1, 2015, appellant Family Medicine of Stark County filed a complaint

against appellees Moresetta and William Smart. Appellant filed a first amended complaint

in September of 2015 and, on January 20, 2016, appellant filed a second amended

complaint.

      {¶3}    In appellant’s second amended complaint, appellant asserts a claim of

defamation against appellees.      Appellant alleges Moresetta Smart was liable for

defamation by:    filing a racial discrimination complaint with the Ohio Civil Rights

Commission, filing a claim of insurance fraud with Aultcare, filing three complaints with

local police departments, filing a complaint with the State Medical Board of Ohio, filing a

complaint with the Ohio Attorney General, and filing a case in federal district court.

Appellant avers in its second claim that appellees violated R.C. 2307.011. In appellant’s

third claim, it alleges appellees acts of defamation were intentional torts made with

reckless disregard for the truth or made with actual malice; thus appellant states it is

entitled to punitive damages and attorney fees. Appellant also alleges William Smart is

jointly liable for damages under R.C. 3103.03.       Appellees filed an answer to each

complaint.

      {¶4}   A bench trial was held on appellant’s complaint. Robert Zedell (“Zedell”) of

the Massillon Prosecutor’s Office testified that Moresetta Smart came into the office and
Stark County, Case No. 2016CA00218                                                         3


wanted to file criminal charges against appellant’s staff for assault, as she alleged they

tried to kill her. Zedell testified that when he told Moresetta they were not going to file

criminal charges against appellant, security guards had to remove her from the building.

When asked what Moresetta specifically said on that day, Zedell stated she mentioned

something about a staff member of appellant’s giving her a shot and receiving medical

treatment she did not want.      Zedell could not recall any other specific statements

Moresetta made. Zedell testified he never met or spoke to William Smart.

       {¶5}   Moresetta Smart testified she was a former patient of appellant and a nurse

gave her a flu shot without her consent that caused her lasting health problems. Further,

she takes issue with other experiences she had when she was a patient of appellant’s.

Moresetta confirmed she filed a claim with the Civil Rights Commission against appellant

pertaining to medical treatment she thought was discriminatory, filed a case in federal

court against appellant, filed an insurance fraud claim with Aultcare with regards to

appellant, filed complaints against appellant with police departments, and filed a

complaint against an employee of appellant with the State Medical Board. She also

confirmed none of these claims against appellant were successful.

       {¶6}   William Smart testified he was not aware of all the claims his wife made.

While he sympathizes with his wife’s situation, he did not encourage her to file any

complaints. William believes his wife was given improper medical treatment, but did not

do anything to encourage her and only got involved when he got sued.

       {¶7}   Gust Pantelas (“Pantelas”), a physician employed by appellant, testified

appellant spent lots of time and effort to review and respond to appellees’ complaints and

he feels like appellant is being harassed. Pantelas just wants it to stop. Pantelas testified
Stark County, Case No. 2016CA00218                                                       4


appellant has expended 37.5 hours of staff time to reply to the filings by appellees.

Pantelas is not aware of any other statements than to federal court, state agencies, and

appellant’s own staff made by appellees. Pantelas did not personally observe or hear the

statements made by Moresetta to staff members.

      {¶8}   The magistrate issued a decision on October 20, 2016. The magistrate

found Moresetta Smart: made a complaint to the City of Canton Law Department in

January of 2014 against appellant, alleging she was assaulted when given a shot without

her consent; in February and March of 2014, made complaints against appellant with the

Jackson Township Police Department alleging she was given a shot without permission,

alleging she was denied a request to alter her medical records, and alleging appellant

falsified medical records; in April of 2014 made a complaint against appellant with the

State Medical Board of Ohio that was subsequently dismissed; in May of 2014, made a

complaint against a medical assistant employed by appellant with the Ohio Board of

Nursing; in 2014, made a complaint with the Ohio Civil Rights Commission that was

dismissed by the Ohio Civil Rights Commission stating she was denied the opportunity to

correct her medical records, arguing she was discriminated and retaliated against,

alleging appellant made false statements under oath regarding her medical records and

health care services, alleging appellant administered treatment without her consent, and

alleging improper billing practices; filed a grievance against appellant with Aultcare in

2014; filed a complaint with the Ohio Attorney General alleging battery, dishonesty, fraud,

identity theft, and HIPPA violations that was subsequently closed; and filed a federal

lawsuit against appellant for civil rights violations that was subsequently dismissed. The

magistrate further stated that after the instant case was filed, both Moresetta and William
Stark County, Case No. 2016CA00218                                                         5


filed complaints with the Ohio Civil Rights Commission against appellant alleging the

instant case was retaliation for Moresetta’s earlier complaints. These complaints were

subsequently dismissed by the Ohio Civil Rights Commission.

       {¶9}   The magistrate found there was no testimony of any witness with first-hand

knowledge regarding specific statements appellees made about appellant other than to

police, the federal court, and various state agencies. Further, that while there was no

expert testimony concerning the reasonableness of the attorney fees requested by

appellant, Pantelas did testify that appellant had actually incurred the fees as reflected in

the invoice submitted by counsel for appellant.

       {¶10} In the conclusions of law section of the magistrate’s decision, the magistrate

determined the statements made by Moresetta in the federal district court were

reasonably related to the complaint; thus she is entitled to absolute privilege for those

statements. Further, that the statements made by Moresetta to the City of Canton Law

Department, Jackson Township Police, Massillon Prosecutor, and Ohio Attorney General

were reasonably related to her attempts to set in motion the investigation of claimed illegal

or criminal activity and in an attempt to initiate prosecution of that activity; thus, the

doctrine of absolute immunity applies to those statements.

       {¶11} The magistrate found the doctrine of absolute privilege applies to the

statements made in proceedings before the Ohio Civil Rights Commission because the

statements were reasonably related to attempts to assert complaints. The magistrate

determined that while statements made to the State Medical Board of Ohio and the Ohio

Board of Nursing are only entitled to qualified privilege and Moresetta could be held liable

for her statements if she made them with malice, the statements at issue were about a
Stark County, Case No. 2016CA00218                                                           6


nurse who was a not a party to this case and a doctor whose claims were voluntarily

dismissed prior to trial.

       {¶12} The magistrate determined appellant’s second cause of action which

references the statutory definitions for “conduct,” “intentional tort claim,” and “tort action”

is a count requesting relief in the form of economic and non-economic damages, and

does not assert an independent cause of action separate from appellant’s claim for

defamation. The magistrate found that since Moresetta is entitled to absolute immunity

for her statements, William cannot be held liable for assisting her in making those

statements pursuant to R.C. 3103.03. Further, that R.C. 3103.03 is intended to permit

recovery from one spouse to another for certain “necessary” expenses and it does not

render one spouse civilly liable for the alleged tortious actions of another.

       {¶13} The magistrate rendered judgment in favor of appellees. Neither party filed

timely objections to the magistrate’s decision. On November 8, 2016, nineteen days after

the magistrate’s decision, the trial court issued a judgment entry approving and confirming

the magistrate’s decision and rendering judgment in favor of appellees.

       {¶14} On November 18, 2016, appellant filed a motion for extension of time to file

objections to the magistrate’s decision. On November 28, 2016, the trial court issued a

judgment entry denying appellant’s motion for an extension of time to file objections to

the magistrate’s decision. The trial court found it was without jurisdiction to rule on

appellant’s motion, as it had already entered final judgment on November 8, 2016.

       {¶15} Appellant appeals the October 20, 2016 and November 8, 2016 judgment

entries of the Stark County Court of Common Pleas and assigns the following as error:
Stark County, Case No. 2016CA00218                                  7


     {¶16} “I. THE TRIAL COURT’S DECISION INCORRECTLY APPLIED THE

AFFIRMATIVE DEFENSE OF ABSOLUTE PRIVILEGE.          THE DEFAMATORY

CONDUCT OF THE APPELLEES WAS NOT REASONABLY RELATED TO THE

PROCEEDINGS THAT THEY PURSUED. THEREFORE, THE DECISION WAS ALSO

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

     {¶17} “II. THE TRIAL COURT’S DECISION WAS IN ERROR AS A MATTER OF

LAW AS THE AFFIRMATIVE DEFENSE OF ABSOLUTE IMMUNITY WAS NOT

PROPERLY OR COMPLETELY CONSIDERED. THE DEFAMATORY CONDUCT OF

THE APPELLEES WAS FOR THE PURPOSE OF ILLEGAL ULTERIOR MOTIVES.

PROOF OF SUCH MOTIVES PREVENTED THE ASSERTION OF THE AFFIRMATIVE

DEFENSES OF ABSOLUTE IMMUNITY AND ABSOLUTE PRIVILEGE.

     {¶18} “III. THE TRIAL COURT’S DECISION WAS IN ERROR AND AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE. THE DEFAMATORY CONDUCT OF

APPELLEES WAS FOR THE PURPOSE OF ILLEGAL ULTERIOR MOTIVES. PROOF

OF SUCH MOTIVES PREVENTED THE ASSERTION OF THE AFFIRMATIVE

DEFENSES OF ABSOLUTE IMMUNITY AND ABSOLUTE PRIVILEGE.

     {¶19} “IV. THE MAGISTRATE’S DECISION WAS IN ERROR AS A MATTER OF

LAW REGARDING THE APPLICATION OF ORC 3103.03 AS TO SPOUSAL LIABILITY.

CONTRARY TO THE DECISION, THERE IS NO LANGUAGE LIMITING SPOUSAL

LIABILITY FOR “NECESSARY” EXPENSES IN THE APPLICABLE SUBPARAGRAPH

A.   THEREFORE, THIS PORTION OF THE DECISION WAS AN ABUSE OF

DISCRETION.
Stark County, Case No. 2016CA00218                                                       8


      {¶20} “V. THE MAGISTRATE’S DECISION WAS IN ERROR AS A MATTER OF

LAW AND AN ABUSE OF DISCRETION AS PROOF OF CLAIM FOR ATTORNEY FEES

DOES NOT REQUIRE AN EXPERT WITNESS. THE LACK OF AN EXPERT WITNESS

WAS THE SOLE REASON GIVEN FOR THE DENIAL OF THE CLAIM.

      {¶21} “VI. THE MAGISTRATE’S DECISION WAS IN ERROR AS A MATTER OF

LAW AND AN ABUSE OF DISCRETION, AS THE FRIVOLOUS CONDUCT STATUES

DO NOT PROVIDE AN EXCLUSIVE REMEDY.

      {¶22} “VII. THE MAGISTRATE’S DECISION INCORRECTLY FOUND THAT THE

PLAINTIFF HAD WAIVED THE CAUSES OF ACTION. ALSO, PARAGRAPH NINE OF

THE CONCLUSIONS OF LAW IS INCORRECT AS THE EXPENSES INCURRED BY

PLAINTIFF-APPELLANT EMPLOYER WERE VERIFIED AND ADMITTED INTO

EVIDENCE. THEREFORE, THE DECISION WAS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.

      {¶23} “VIII. THE MAGISTRATE’S DECISION WAS IN ERROR AS A MATTER OF

LAW AND AN ABUSE OF DISCRETION AS THE CAUSES OF ACTION FOR

INTENTIONAL TORT CLAIMS AND ECONOMIC LOSS ARE SEPARATE FROM

DEFAMATION CLAIMS.”

                              Objections to Magistrate’s Decision

      {¶24} Civil Rule 53(D)(3)(b)(i) provides that “a party may file written objections to

a magistrate’s decision within fourteen days of the filing of the decision * * *.” The

magistrate’s order in this case is dated October 20, 2016. Nineteen days after the

magistrate issued her order, the trial court issued an order confirming and approving the
Stark County, Case No. 2016CA00218                                                          9


magistrate’s decision. Appellant did not file objections to the magistrate’s decision within

the fourteen day time limitation provided by Civil Rule 53(D)(3)(b)(i).

       {¶25} Since appellant did not file objections in a timely manner under Civil Rule

53(D)(3)(b)(i), appellant has therefore waived the right to appeal issues pursuant to Civil

Rule 53(D)(3)(b)(i), except for plain error. Waites v. Waites, 5th Dist. Fairfield No. 15-CA-

1, 2015-Ohio-2916. However, in appeals of civil cases, the plain error doctrine is not

favored and may be applied only in extremely rare cases involving exceptional

circumstances where the error seriously affects the basic fairness, integrity, or public

reputation of the judicial process, thereby challenging the legitimacy of the underlying

judicial process itself. Kell v. Russo, 5th Dist. Stark No. 2011 CA 0082, 2012-Ohio-1286,

citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997). The doctrine

should only be applied in extremely unusual circumstances where the error complained

of, if left uncorrected, would have a material adverse effect on the character and public

confidence in the judicial proceeding. Id.

                                              I., II., III.

       {¶26} In its first, second, and third assignments of error, appellant argues the trial

court erred in finding absolute privilege applied. Further, that the trial court’s decision

was against the manifest weight of the evidence.

       {¶27} A defamation claim requires a plaintiff to establish: (1) a false statement of

fact was made about the plaintiff; (2) the statement was defamatory; (3) the statement

was published; (4) the plaintiff suffered injury as a proximate result of the publication; and

(5) the defendant acted with the requisite degree of fault in publishing the statement.

Jamison v. Galena, 5th Dist. Delaware No. 15 CAE 01 007, 2015-Ohio-2845.
Stark County, Case No. 2016CA00218                                                          10


       {¶28} However, there are certain occasions where there is a great enough public

interest in encouraging uninhibited freedom of expression to require the sacrifice of the

right of the individual to protect his reputation by civil suit. M.J. DiCorpo, Inc. v. Sweeney,

69 Ohio St.3d 497, 634 N.E.2d 203 (1994). On these occasions, the law recognizes that

false and defamatory matter may be published without civil lability. Id. When an absolute

privilege applies, it protects the publisher of a false and defamatory statement even

though it is made with actual malice, in bad faith, and with knowledge of its falsity. Lee v.

City of Upper Arlington, 10th Dist. Franklin No. 03AP-132, 2003-Ohio-7157.                One

occasion of absolute privilege is in a judicial proceeding. Id.; Hecht v. Levin, 66 Ohio

St.3d 458, 613 N.E.2d 585 (1993). The absolute privilege or immunity for statements

made in a judicial proceeding extends to every step in the proceeding, from beginning to

end. Id. Appellant argues that, pursuant to Hecht, absolute immunity is removed when

an ulterior motive for the defendant’s conduct is proven. However, we do not read Hecht

to provide such an exception to absolute immunity.

       {¶29} We find no plain error in the magistrate and trial court’s determination that

Moresetta Smart is entitled to absolute immunity for the statements she made in federal

district court as they were reasonably related to the complaint she was attempting to

assert. “A statement in a judicial proceeding enjoys an absolute privilege against a

defamation action as long as the allegedly defamatory statement is reasonably related to

the proceeding in which it appears.” Hecht v. Levin, 66 Ohio St.3d 458, 613 N.E.2d 585

(1993).

       {¶30} We find no plain error in the magistrate and trial court’s determination that

Moresetta Smart is entitled to absolute immunity for the statements she made to the City
Stark County, Case No. 2016CA00218                                                      11


of Canton Law Department, the Jackson Township Police, the Massillon Prosecutor, and

the Ohio Attorney General because her statements were reasonably related to attempts

to set in motion the investigation of claimed illegal activity. An affidavit, statement, or

other information provided to police or a prosecuting attorney reporting the actual or

possible commission of a crime is part of a judicial proceeding is entitled to absolute

privilege against civil liability for statements made which bear some reasonable relation

to the activity reported. M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St.3d 497, 634 N.E.2d

203 (1994).

      {¶31} Further, this Court has previously held the doctrine of absolute privilege

applies to statements made in proceedings before the Ohio Civil Rights Commission.

Cirotto v. Heartbeats of Licking County, 5th Dist. Licking No. 10-CA-21, 2010-Ohio-4238

(affirming determination of trial court that the appellant could not establish a claim of

defamation as the statements made to the Ohio Civil Rights Commission were protected

by absolute privilege). We thus find no plain error in the magistrate and trial court’s

determination that appellees’ statements to the Ohio Civil Rights Commission were

protected by the doctrine of absolute privilege as they were reasonably related to their

attempts to assert those complaints.

      {¶32} Appellant finally contends appellees’ claims were not reasonably related to

the proceedings because, in each case, her claims were either denied or dismissed.

However, the Ohio Supreme Court stated the privilege exists irrespective of whether the

statement was made in bad faith. Hecht v. Levin, 66 Ohio St.3d 458, 613 N.E.2d 585

(1993). Further, the privilege applies even if a person provides erroneous information to

the police or prosecutor in reporting possible criminal activity. Lee v. City of Upper
Stark County, Case No. 2016CA00218                                                       12

Arlington, 10th Dist. Franklin No. 03AP-132, 2003-Ohio-7157. We find the trial court did

not commit plain error in finding the statements made by Moresetta Smart bore some

reasonable relation to the proceedings at issue.

       {¶33} In our review of whether there is competent and credible evidence to

support the trial court’s decision, we find no plain error occurred.

       {¶34} Appellant’s first, second, and third assignments of error are overruled.

                                                IV.

       {¶35} In its fourth assignment of error, appellant contends the trial court erred

regarding the application of R.C. 3103.03 as to spousal liability. Appellant contends the

trial court erred in construing paragraphs (A) and (C) together.

       {¶36} We find no plain error in the trial court’s interpretation of R.C. 3103.03 and

the reading of the sections in pari materia.          Perrysburg Twp. v. Rossford Arena

Amphitheater Auth., 175 Ohio St.3d 549, 2008-Ohio-363, 888 N.E.2d 440. R.C. 3103.03

makes a spouse liable for the cost of “necessaries” that a third party provides to the other

spouse under certain circumstances. Brown v. Williamson, 2nd Dist. Montgomery No.

22769, 2009-Ohio-4579; Union Hospital v. Beach, 5th Dist. Tuscarawas No. 2016 AP 05

0027, 2016-Ohio-7058; Home Helpers/Direct Link v. St. Pierre, 12th Dist. Warren No.

CA2010-11-116, 2011-Ohio-4909. The term “necessaries” as used in the statute means

food, medicines, clothing, shelter, or personal services as are usually considered

reasonably essential for the preservation and enjoyment of life. Home Helpers/Direct Link

v. St. Pierre, 12th Dist. Warren No. CA2010-11-116, 2011-Ohio-4909.

       {¶37} Further, courts have held that one spouse is not liable for the debt of the

other spouse unless one spouse is unable to pay the debt and the other spouse is able
Stark County, Case No. 2016CA00218                                                           13

to aid in support by paying it himself. Brown v. Williamson, 2nd Dist. Montgomery No.

22769, 2009-Ohio-4579. Thus, R.C. 3103.03(A) requires the married person be unable

to support herself before the spouse of the married person must assist. Home

Helpers/Direct Link v. St. Pierre, 12th Dist. Warren No. CA2010-11-116, 2011-Ohio-4909.

In this case, appellant presented no evidence that Moresetta Smart was unable to pay a

debt that William Smart was able to pay himself. Appellant’s fourth assignment of error

is overruled.

                                                  V.

       {¶38} In its fifth assignment of error, appellant argues the trial court erred in finding

it was not entitled to attorney fees based upon the lack of an expert witness.

       {¶39} The decision of whether to award attorney fees rests in the sound discretion

of the court. Moore v. Moore, 175 Ohio App.3d 1, 2008-Ohio-255, 884 N.E.2d 1113 (6th

Dist.). In this case, while the magistrate stated in the findings of fact that there was no

expert testimony concerning the reasonableness or necessity of the fees, the magistrate

also found in the findings of fact that Pantelas did testify that appellant had actually

incurred the fees as reflected in the invoice. There is no indication in the magistrate’s

decision that the sole reason appellant’s claim for attorney fees was denied was based

on the lack of expert testimony.

       {¶40} Appellant’s claim for attorney fees in the second amended complaint is tied

solely to the intentional tort defamation claim as appellant contends it is entitled to

attorney fees because appellees’ acts of defamation were intentional torts made with

reckless disregard of the truth or actual malice. Appellant asserts no other reason as to

why they are entitled to attorney fees. Appellant did not prevail on its claim for defamation.
Stark County, Case No. 2016CA00218                                                      14

See Hagemeyer v. Sadowski, 86 Ohio App.3d 563, 621 N.E.2d 707 (6th Dist. 1993);

Falther v. Toney, 5th Dist. Fairfield No. 05 CA 32, 2005-Ohio-5954 (stating a prevailing

party is generally the party in whose favor the decision or verdict is rendered and

judgment entered). In the previous assignments of error, we found the trial court did not

commit plain error in entering judgment for appellees on appellant’s defamation claim.

Accordingly, we find no plain error in the trial court’s denial of appellant’s request for

attorney fees as appellant was not the prevailing party on its defamation claim.

Appellant’s fifth assignment of error is overruled.

                                                VI.

       {¶41} In its sixth assignment of error, appellant contends the magistrate and trial

court erred in finding relevant the fact that appellant did not pursue a frivolous conduct

motion in the federal court case Moresetta Smart filed against appellant.

       {¶42} The issue of whether testimony is relevant or irrelevant, confusing or

misleading is best decided by the trial judge who is in a significantly better position to

analyze the impact of the evidence on the jury. State v. Taylor, 39 Ohio St.3d 162, 529

N.E.2d 1382 (1988). Accordingly, the admission or exclusion of relevant evidence lies

within the sound discretion of the trial court. Krischbaum v. Dillon, 58 Ohio St.3d 58, 567

N.E.2d 1291 (1991); Vogelmeier v. Ohio Power Co., 5th Dist. Knox No. 14CA14, 2014-

Ohio-5175.

       {¶43} Upon review, we find the trial court’s determination that this evidence is

relevant does not present exceptional circumstances that rise to the level of plain error.

Appellant’s sixth assignment of error is overruled.
Stark County, Case No. 2016CA00218                                                       15


                                               VII.

       {¶44} In its seventh assignment of error, appellant argues the magistrate’s

decision incorrectly found appellant waived the causes of action.         Further, that the

decision was against the manifest weight of the evidence.

       {¶45} Appellant does not state which causes of action were purportedly found to

be waived by the magistrate. While the magistrate found no defamation based upon the

complaints to the State Medical Board of Ohio and Ohio Board of Nursing because the

false statements were not made about appellant but were made about other individuals

who were not parties to this lawsuit and thus the first prong of a defamation claim that the

“false statement of fact was made about the plaintiff” was not met, it does not appear the

magistrate found these causes of action to be waived.

       {¶46} We find the magistrate and trial court did not commit plain error in finding

the elements of defamation were not met by Moresetta Smart’s complaints to the State

Medical Board of Ohio and Ohio Board of Nursing. Since the statements made to the

State Medical Board of Ohio and Ohio Board of Nursing were not made about appellant,

there was no “false statement of fact made about the plaintiff” or injury suffered by the

plaintiff as a proximate result of the publication. Jamison v. Galena, 5th Dist. Delaware

No. 15 CAE 01 007, 2015-Ohio-2845.           Appellant’s seventh assignment of error is

overruled.

                                               VIII.

       {¶47} In its final assignment of error, appellant contends the magistrate erred in

finding the causes of action for intentional tort claims and economic loss are separate

from defamation claims. We find the magistrate and the trial court did not commit plain
Stark County, Case No. 2016CA00218                                                          16


error in this determination. In its second amended complaint, the only tort, intentional or

otherwise, that appellant asserts is defamation. While appellant does list as a “claim” in

its complaint that appellees violated R.C. 2307.011(A), (D), and (J), this section contains

only definitions of the terms “conduct,” “tort action,” and “intentional tort claim” and does

not contain an independent cause of action. Appellant’s eighth assignment of error is

overruled.

       {¶48} Upon review, we find this case does not present exceptional circumstances

that rise to the level of plain error. We find no error that seriously affects the basic

fairness, integrity, or public reputation of the judicial process or that challenges the

legitimacy of the underlying judicial process itself.

       {¶49} Finally, appellant filed an additional assignment of error in its reply brief.

This assignment of error need not be considered by this Court, as it was improperly raised

by way of reply brief. Bank One, Nat’l Assn. v. Moton, 5th Dist. Richland No. 04CA8,

2004-Ohio-6280.     App.R. 16(A)(7) provides that assignments of error shall be argued in

the brief of appellant. App.R. 16(C) states that a reply brief is to “reply to the brief of the

appellee.” New assignments of error cannot be raised in a reply brief. Bowker v. Bowker,

5th Dist. Delaware No. 10 CAF 1100 85, 2011-Ohio-4524; Harris v. Harris, 5th Dist. Stark

No. 2014CA00107, 2015-Ohio-1000.
Stark County, Case No. 2016CA00218                                                 17


      {¶50} Based on the foregoing, appellant’s assignments of error are overruled and

the judgment entries of the Stark County Court of Common Pleas are affirmed.

By Gwin, J.,

Delaney, P.J., and

Wise, Earle, J. concur
