[Cite as Sears v. Kaiser, 2012-Ohio-1777.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                   GREENE COUNTY

THOMAS SEARS, et al.                               :
                                                   :      Appellate Case No. 2011-CA-40
        Plaintiff-Appellants                       :
                                                   :      Trial Court Case No. 09-CV-738
v.                                                 :
                                                   :
DAVID KAISER, et al.                               :      (Civil Appeal from
                                                   :      (Common Pleas Court)
        Defendant-Appellees                  :
                                                    :
                                                 ...........

                                                 OPINION

                               Rendered on the 20th day of April, 2012.

                                                 ...........

FRANK M. PAYSON, Atty. Reg. #0055165, The Law Offices of Frank M. Payson, P.C., 120
West Second Street, Suite 400, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellants

T. ANDREW VOLLMAR, Atty. Reg. #0064033, Freund, Freeze & Arnold, One Dayton Centre, 1
South Main Street, Suite 1800, Dayton, Ohio 45402
      Attorney for Defendant-Appellees
                                               .............

HALL, J.

        {¶ 1}     Thomas and Lizette Sears appeal from the trial court’s entry of summary judgment

against them on their complaint against appellees David and Dorothy Kaiser alleging defamation

and other causes of action.
                                                                                              2

       {¶ 2}    Appellants advance three assignments of error on appeal. First, they contend the

trial court erred by overruling their motion to strike materials submitted in support of the Kaisers’

summary-judgment motion. Second, they claim the trial court erred by failing to address their

defamation-per-se claim. Third, they assert that the trial court erred by entering summary judgment

against them on another defamation claim.

       {¶ 3}    The present appeal stems from the Kaisers’ vocal opposition to the “Hole in the

Wall Farm,” a non-profit animal rescue operated by Thomas and Lizette Sears from their Xenia

Township home. According to Appellants, the project involves finding homes for abandoned

animals, some of which are exotic. The record reflects that the Searses and the Kaisers are

neighbors. Fearing that the animal rescue posed a health and safety hazard and was unlawful, the

Kaisers spoke out against it and attempted to organize opposition. At issue are statements the

Kaisers made to various people while opposing the project.

       {¶ 4}    In an amended complaint, Appellants alleged that the Kaisers published a number

of false statements, including that the Searses “were running an illegal business,” “were running a

business in a residential neighborhood,” “were keeping on their property adult exotic animals, i.e.,

lions, tigers, and bears,” “caused fish kills in a creek adjoining the property due to manure runoff,”

“were dumping sewage out of a pipe onto the Bodwell property,” “were creating a health hazard in

the neighborhood,” “were engaged in illegal activities,” “were creating a health nuisance,” “used a

1977 Chevrolet truck with fire emblems on it and this created a safety hazard in people not

understanding that it was not a fire truck,” and “were abusing their animals.”

       {¶ 5}    Based on its review of the record, the trial court grouped the challenged

comments into four categories: (1) communications to Xenia Township officials, (2) statements
                                                                                              3

at an Ohio House of Representatives hearing, (3) statements in connection with a petition to

prevent the Searses from operating an animal crematory on their property, and (4) statements to

assorted third parties, including neighbors and representatives of other organizations. The trial

court summarized the foregoing communications and statements as follows:

               * * * [T]he communications and statements at issue in this case are all

       related to Defendants’ concerns about Plaintiffs’ animal rescue business,

       including whether exotic and possibly dangerous wild animals were being

       harbored and how Plaintiffs’ operation might be negatively affecting the

       surrounding properties and the community at large. The Defendants were

       certainly quite active and vocal in their support for legislation at the state and

       local levels that would regulate such enterprises. Defendants, through primarily

       David Kaiser, expressed very specific concerns about Plaintiffs’ animal rescue

       operation, and strong support for government regulation in [the] area of exotic

       animals and captive wildlife, to both state and local officials, as well as adjacent

       property owners.

(Doc. #102 at 11-12).

       {¶ 6}    With regard to the Searses’ claims for defamation, the trial court recognized

that “there may be legitimate questions concerning the constitutional protections for some of

the Defendants’ statements (i.e., expressions of opinion, political debate), and also the obvious

issue of any statement’s truth or falsity[.]” (Id. at 12). The trial court concluded, however, that

resolution of those issues was unnecessary because the Kaisers’ communications were

protected by a qualified privileged. Finding no genuine issue of material fact as to whether the
                                                                                             4

qualified privilege had been overcome by evidence of actual malice on the part of the Kaisers,

the trial court held that they were “entitled to summary judgment on Plaintiffs’ claims of

defamation.” (Id. at 15). The trial court entered summary judgment against the Searses on their

claims for intentional infliction of emotional distress, loss of consortium, and punitive damages.

(Id. at 16-19). This appeal followed.

       {¶ 7}    In their first assignment of error, the Searses contend the trial court erred by

overruling their motion to strike materials submitted in support of the Kaisers’

summary-judgment motion.

       {¶ 8}    The materials at issue consist of affidavits, hearing transcripts, and newspaper

articles. The Searses contend the hearing transcripts and newspaper articles do not constitute

proper Civ.R. 56 evidence. They further argue that the transcripts and articles containe

inadmissible hearsay. With regard to the affidavits, the Searses note that some of the affiants

failed to specify that they were competent to testify or that their statements were based on

personal knowledge. They also argue that portions of the affidavits contain hearsay,

speculation, or vague averments. They additionally assert that a purported affidavit from a

witness named Elizabeth Gardner fails to qualify as an affidavit at all. Finally, they challenge

the admissibility of a U.S.D.A. “inspection report,” arguing that the signer of the report, Robert

Willems, could not properly certify it.

       {¶ 9}     Having reviewed the record, we find the first assignment of error to be without

merit. The materials at issue are attached to the Kaisers’ summary judgment motion and are

identified as Exhibits A, B, C, D, F, G, I, L, M, N, O, P, Q, and R. We have read these materials

in their entirety. Without explicitly addressing them line by line, we find the Searses’ arguments
                                                                                                                                         5

      to be unpersuasive largely for the reasons set forth in the Kaisers’ appellate brief and

      memorandum in opposition to the motion to strike. (See Doc. #95).

                 {¶ 10} Civil Rule 56(C) requires affidavits to “show affirmatively that the affiant is

      competent to testify[.]” Although some of the affiants did not specify that they were competent,

      the content of the affidavits reasonably establishes that this requirement was met.1 We reach

      the same conclusion with regard to the failure of some affiants to specify that their statements

      were based on first-hand knowledge. Regarding vagueness and speculation, we do not find the

      affidavits so deficient as to support a finding that the trial court abused its discretion in relying

      on them. With regard to hearsay, most of the challenged statements either do not qualify as

      hearsay or are subject to a hearsay exception. To the extent that any of the affidavits do contain

      hearsay, the trial court’s admission of the hearsay would be at most harmless error. The Kaisers

      properly note that “[t]he affidavits attached to the Defendants’ motion provided mostly

      background information. The affidavits and newspaper articles * * * did not form the basis for

      the [trial court’s] conclusion that the Plaintiffs failed to establish malice.” The determination

      that the Kaisers’ communications were protected by qualified privilege and that the Searses

      failed to establish malice could be made without reference to the challenged materials.

                 {¶ 11} We agree with the Searses, however, that Exhibit I is a notarized statement

      from a witness named Elizabeth Gardner rather than a true affidavit. Nevertheless, the trial

      court’s consideration of the document constituted harmless error. During his own deposition,

      David Kaiser referred to Gardner’s notarized statement and cited her as a source of his belief


          1
           We note, too, that under Evid.R. 601 competence is presumed for adults, with some exceptions not applicable here. Turner v.
Turner, 67 Ohio St.3d 337, 343, 617 N.E.2d 1123 (1993).
                                                                                                  6

that the Searses were operating their animal rescue without insurance. (See, e.g., Kaiser depo.

at 44, 52). Kaiser’s testimony on this issue was relevant and proper because it explained the

basis for allegedly defamatory remarks he made about the Searses lacking insurance.

        {¶ 12} We reach the same conclusion with regard to the challenged U.S.D.A.

inspection report. In his deposition, David Kaiser testified at length about the report and cited it

as the basis for several of the statements he made about the Searses’ animal rescue. (See, e.g.,

Kaiser depo. at 54-55, 116, 166, 171-177, 26). Regardless of whether the report itself was

properly authenticated, Kaiser’s testimony about it was relevant and proper because it explained

the basis for the allegedly defamatory remarks he made that were related to the report. The

presence of the report itself in the record was of little significance.

        {¶ 13} Finally, with regard to the newspaper articles, we note that they generally do

not constitute proper summary-judgment evidence. See, e.g., State ex rel. Am. Civ. Liberties

Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commissioners, 128 Ohio St.3d 256,

2011-Ohio-625, 943 N.E.2d 553, ¶30 (“Newspaper articles are self-authenticating, pursuant to

Evid.R. 902(6); however, newspaper articles are generally inadmissible as evidence of the facts

stated in them.”). Plavecski v. Cleveland Clinic Found., 192 Ohio App.3d 533, 539,

2010-Ohio-6016, 949 N.E.2d 1007, ¶10 (8th Dist). The trial court’s admission of the articles

here, however, constituted harmless error. The purpose of the articles was to demonstrate the

existence of a public debate and controversy regarding individuals keeping exotic animals.

The fact that such a debate existed is well established by other evidence, most notably David

Kaiser’s   own     deposition   testimony.    Inclusion    of   the   newspaper   articles   in   the

summary-judgment record added nothing material. Having found no reversible error flowing
                                                                                               7

from the trial court’s ruling on the Searses’ motion to strike, we overrule their first assignment

of error.

        {¶ 14} In their second assignment of error, Appellants claim the trial court erred by

completely failing to address their defamation-per-se claim. This assignment of error relates to

count two of the Searses’ amended complaint, which alleged defamation per se based on the

nature of some of the Kaisers’ alleged comments.

        {¶ 15} The Searses assert that the trial court did not address the defamation-per-se

claim, despite the fact that the parties discussed it in their summary-judgment briefs. They

reason that the trial court necessarily abused its discretion, either by intentionally ignoring the

defamation-per-se claim or by inadvertently missing it. The Searses further assert that

establishing defamation per se would obviate the need for them to prove malice, thereby

undermining the basis for the trial court’s summary-judgment ruling.

        {¶ 16} Upon review, we find the Searses’ argument to be without merit. Count one of

the amended complaint set forth a defamation claim against the Kaisers. Count two alleged

defamation per se. In its summary judgment ruling, the trial court recited the law governing

defamation per quod and defamation per se. It also set forth the law governing qualified

privilege. It then found that all of the Kaisers’ alleged comments were protected by qualified

privilege and that the record did not reveal a genuine issue of material fact on the issue of actual

malice, which would overcome the privilege. As a result, the trial court found the Kaisers

“entitled to summary judgment on Plaintiffs’ claims of defamation.” (Doc. #102 at 15)

(Emphasis added). Because the trial court found the Kaisers entitled to summary judgment on

the defamation “claims,” we disagree with the Searses’ assertion that the trial court ignored or
                                                                                                                                                 8

      overlooked the claim for defamation per se.2 The second assignment of error is overruled.

                  {¶ 17} In their third assignment of error, Appellants assert that the trial court erred by

      entering summary judgment against them on their “defamation claim.” Although the Searses

      refer to this “claim” in the singular, their argument addresses both their ordinary defamation

      claim and their claim of defamation per se.

                  {¶ 18} The Searses advance multiple arguments under this assignment of error. They

      first contend the trial court erred in denying their motion to strike affidavits and other

      documents submitted in support of the Kaisers’ summary-judgment motion. As a result, the

      Searses argue that the trial court based its ruling on materials it should not have considered. We

      disagree. We fully addressed the motion to strike under the first assignment of error, supra, and

      need not repeat that analysis here.

                  {¶ 19} The Searses next contend the trial court incorrectly found all of the Kaisers’

      communications protected by qualified privilege. They argue that qualified privilege did not

      apply to the Kaisers’ statements to Daniel Birtle and to Donald and Laura Linnell, who did not

      share a “common interest” with the Kaisers. The Searses also assert that some of the Kaisers’

      communications constituted defamation per se, thereby “superseding all qualified privilege”

      and eliminating the need for evidence of actual malice. We disagree.

                  {¶ 20} “Whether or not a publication was privileged is a question of law to be decided

      by the court.” (Citations omitted.) Shepard v. Griffin Services, Inc., 2d Dist. Montgomery No.


           2
             Parenthetically, we also reject the Searses’ apparent suggestion that qualified privilege cannot defeat a claim for defamation per se.
“[E]ven statements which would otherwise constitute defamation per se are not actionable per se when the defendant has a qualified
privilege.” (Citations omitted.) Shepard v. Griffin Services, Inc., 2d Dist. Montgomery App. No. 19032, 2002-Ohio-2283.
                                                                                             9

19032, 2002-Ohio-2283. “A qualified privilege is recognized in many cases where the publisher

and the recipient have a common interest, and the communication is of a kind reasonably

calculated to protect or further it.” Hahn v. Kotten, 43 Ohio St.2d 237, 244, 331 N.E.2d 713

(1975).

          {¶ 21} We are unpersuaded by the Searses’ argument that Birtle and the Linnells did

not share a “common interest” with the Kaisers. The record reflects that Birtle and the Linnells

were neighbors of the Kaisers. On appeal, the Searses do not explain why Birtle and the

Linnells would not share a common interest with their neighbors regarding the public health,

safety, and legality of the animal-rescue operation. “Courts recognize that neighbors share a

common interest in matters affecting their collective welfare and that statements made

regarding such matters are protected by a qualified privilege.” Hoyt v. Spangenberg, Minn.

App. No. C9-97-1527, 1998 WL 74286, *3 (Feb. 24, 1998); see also Hohl v. Mettler, 62

N.J.Super. 62, 66-67, 162 A.2d 128 (1960) (“As to the other features of defendants’

complained-of activity, the publication of the cartoon referred to, and the stirring up generally

of opposition to the proposal on grounds of civic interest, depreciation of realty values and

general considerations of health, taxation, etc., we think it patent no legal cause of action is

made out by the plaintiffs. The acts complained of in that general category fall well within the

qualified privilege of citizens to protect their property and serve the general common good.”).

          {¶ 22} Finally, we reject the Searses’ argument that establishing defamation per se

precludes the availability of qualified privilege and eliminates the need for evidence of actual

malice. Shepard at *10; see also Hahn at 248 (“‘In the case of a privileged communication,

however, express malice as distinguished from malice in law must be shown; that is to say, if
                                                                                       10

the occasion be privileged, the plaintiff may not recover, although he proves that defendant

used language actionable per se and that the same was false, unless he goes further and shows

that in using same, defendant was moved by actual malice[.]’”) (Citation omitted and emphasis

added). The third assignment of error is overruled.

       {¶ 23} Having overruled each assignment of error, we affirm the judgment of the

Greene County Common Pleas Court.

                                                  .............

FROELICH and FISCHER, JJ., concur.

(Hon. Patrick F. Fischer, First District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).

Copies mailed to:

Frank M. Payson
T. Andrew Vollmar
Hon. Stephen Wolaver
