[Cite as McNett v. Worthington, 2011-Ohio-5225.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              VAN WERT COUNTY




DAVID MCNETT,

        PLAINTIFF-APPELLANT,                                  CASE NO. 15-11-05

        v.

JERRY WORTHINGTON,                                            OPINION

        DEFENDANT-APPELLEE.




               Appeal from Van Wert County Common Pleas Court
                         Trial Court No. CV 09-10-518

                                    Judgment Affirmed

                          Date of Decision:        October 11, 2011




APPEARANCES:

        David McNett, Appellant

        Martin D. Burchfield for Appellee
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PRESTON, J.

      {¶1} Plaintiff-appellant, David McNett (hereinafter “McNett”), pro se,

appeals the Van Wert County Court of Common Pleas’ grant of summary

judgment in favor of defendant-appellee, Jerry Worthington (hereinafter

“Worthington”). For the reasons that follow, we affirm.

      {¶2} On October 23, 2009, McNett filed a complaint against Nancy Moore

(hereinafter “Moore”) and Worthington, alleging that Moore and Worthington,

who were co-workers of his at Triumph Thermal Systems, Inc., made false

statements about him to co-workers and Triumph management, which ultimately

led to the termination of his employment. (Doc. No. 2). McNett’s complaint

asserted claims of defamation and interference with an employment relationship

against Moore and Worthington. (Id.).

      {¶3} On July 29, 2010, Moore filed a motion for summary judgment. (Doc.

No. 41). On October 4, 2010, the trial court granted Moore’s motion for summary

judgment, finding that: Moore had a qualified privilege to report to Triumph

management what she thought occurred at the workplace; and McNett was not

terminated due to Moore’s allegations but because of his conduct during and

following the employer’s investigation of the allegations. (JE, Doc. No. 49). That

same day, the trial court entered judgment dismissing all claims against Moore and

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certifying that there was no just cause for delay pursuant to Civ.R. 54(B). (Doc.

No. 50).

      {¶4} On October 20, 2010, Worthington filed a motion for summary

judgment, arguing that he, like Moore, had a qualified privilege to make his

allegations about McNett to Triumph management, and that his allegations were

not the cause of McNett’s employment termination. (Doc. No. 51).

      {¶5} On November 4, 2010, McNett filed a motion to strike Worthington’s

motion for summary judgment because Worthington did not file his motion by

August 1, 2010 as required by the trial court’s scheduling entry. (Doc. No. 53).

On November 9, 2010, McNett filed a motion for an extension of time to file his

response to Worthington’s motion for summary judgment if the trial court should

deny his motion to strike. (Doc. No. 54).

      {¶6} On November 10, 2010, McNett filed a notice of appeal from the trial

court’s grant of summary judgment in favor of Moore. (Doc. No. 55). The case

was assigned appellate case no. 15-10-13, but this Court dismissed the case for

want of jurisdiction under App.R. 4(A).

      {¶7} On November 19, 2010, the trial court overruled McNett’s motion to

strike but granted McNett additional time to respond to Worthington’s motion for

summary judgment. (Doc. No. 56). On January 4, 2011, McNett filed his memo in

opposition. (Doc. No. 57).

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         {¶8} On March 4, 2011, the trial court granted Worthington summary

judgment on the same grounds the trial court had previously granted Moore

summary judgment. (Doc. No. 58).

         {¶9} On April 5, 2011, McNett filed a notice of appeal.1 McNett now

appeals raising two assignments of error2 for our review.

                              ASSIGNMENT OF ERROR NO. I

         WHETHER THE TRIAL COURT ERRED IN GRANTING
         THE APPELLEE’S MOTION FOR SUMMARY JUDGMENT
         WHEN APPELLEE’S [SIC] DID NOT MAKE THE
         REQUIRED DEADLINE AND DID NOT REQUEST ANY
         TIME EXTENSIONS TO SUBMIT HIS SUMMARY
         JUDGMENT MOTION AS EVIDENT BY THE PRETRIAL
         STATUS CONFERENCE NOTICE.

         {¶10} In his first assignment of error, McNett argues that the trial court

erred by granting Worthington’s summary judgment when it was untimely. We

disagree.

         {¶11} “‘It is well-settled that a trial court has the inherent power to control

its own docket and the progress of proceedings in its court.’” Business Data Sys.,

Inc. v. Gourmet Cafe Corp., 9th Dist. No. 23808, 2008-Ohio-409, ¶21, quoting


1
  Although it appears at first glance that McNett’s notice of appeal was beyond App.R. 4(A)’s thirty-day
deadline, the Clerk failed to note the service of the judgment entry on the appearance docket; and therefore,
service was not complete, and the time for filing the notice of appeal was tolled. See State v. McKinney, 3d
Dist. No. 4-11-01, 2011-Ohio-3521, ¶¶14-17.
2
  McNett actually lists no assignments of error but only a “statement of issue” for review. Although App.R.
12(A)(1)(b) directs this Court to “determine the appeal on its merits on the assignments of error set forth in
the briefs,” we will, in the interests of justice, treat McNett’s “statement of issue” as two separate
assignments of error.

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Pavarini v. City of Macedonia (Apr. 18, 2001), 9th Dist. No. 20250, at *3, citing

State ex rel. Kura v. Sheward (1992), 75 Ohio App.3d 244, 245, 598 N.E.2d 1340.

As such, a trial court’s docketing decision is reversible error only if it amounts to

an abuse of its discretion. Id., citing Pavarini at *3, citing State v. Unger (1981),

67 Ohio St.2d 65, 67, 423 N.E.2d 1078.

       {¶12} Civ.R. 56(A) provides, in pertinent part:

       A party may move for summary judgment at any time after the
       expiration of the time permitted under these rules for a
       responsive motion or pleading by the adverse party, or after
       service of a motion for summary judgment by the adverse party.
       If the action has been set for pretrial or trial, a motion for
       summary judgment may be made only with leave of court.

       {¶13} The record indicates that an initial assignment conference and

pretrial hearing was scheduled for January 6, 2010. (Doc. No. 6). The record also

indicates that Worthington filed his motion for summary judgment on October 20,

2010, well beyond the trial court’s scheduled deadline of August 1, 2010. (Doc.

Nos. 9, 51). Since Worthington filed his motion for summary judgment after the

action was set for pretrial and beyond the trial court’s deadline, he was technically

required to seek leave of court first. Civ.R. 56(A). Nevertheless, the trial court

implicitly granted Worthington leave to file his motion for summary judgment by

overruling McNett’s motion to strike and granting Worthington’s motion for

summary judgment. (Doc. Nos. 56, 58); Carpet Barn & Tile House v. CSH, Inc.


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(June 5, 1997), 8th Dist. No. 71821, at *1-2, citing National City Bank v. Fleming

(1981), 2 Ohio App.3d 50, 54, 440 N.E.2d 590; Stewart v. Cleveland Clinic

Foundation (1999), 136 Ohio App.3d 244, 254, 736 N.E.2d 491. We cannot

conclude that the trial court’s decision to grant Worthington leave to file his

motion for summary judgment amounted to an abuse of its discretion.

      {¶14} McNett’s first assignment of error is, therefore, overruled.

                      ASSIGNMENT OF ERROR NO. II

      ALSO APPELLANT DID PRESENT EVIDENCE IN THE
      RECORD AND ARGUMENT THAT SHOWS JERRY
      WORTHINGTON DID MAKE AND PUBLISH FALSE
      DEFAMATORY    STATEMENTS   WHICH    CAUSED
      INTENTIONAL EMPLOYMENT INTERFERENCE AND
      TERMINATION FROM MY JOB.

      {¶15} In his second assignment of error, McNett argues that the trial court

erred in granting Worthington’s motion for summary judgment because the

evidence demonstrated that Worthington’s false statements caused his termination

of employment. We disagree.

      {¶16} We review a decision to grant summary judgment de novo. Doe v.

Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243. Summary judgment is

proper where there is no genuine issue of material fact, the moving party is

entitled to judgment as a matter of law, and reasonable minds can reach but one

conclusion when viewing the evidence in favor of the non-moving party, and the


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conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels

v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 219, 631

N.E.2d 150.

       {¶17} ‘“A cause of action for defamation consists of five elements: (1) a

false and defamatory statement; (2) about plaintiff; (3) published without privilege

to a third party; (4) with fault of at least negligence on the part of the defendant;

and (5) that was either defamatory per se or caused special harm to the plaintiff.’”

Davis v. Jacobs (1998), 126 Ohio App.3d 580, 582, 710 N.E.2d 1185, quoting

Gosden v. Louis (1996), 116 Ohio App.3d 195, 687 N.E.2d 481.

       {¶18} The elements of tortious interference with an employment

relationship are: (1) the existence of an employment relationship between plaintiff

and the employer; (2) the defendant was aware of this relationship; (3) the

defendant intentionally interfered with this relationship; and (4) the plaintiff was

injured as a proximate result of the defendant’s acts. Lennon v. Cuyahoga Cty.

Juvenile Court, 8th Dist. No. 86651, 2006-Ohio-2587, ¶19, citing Costaras v.

Dunnerstick, 9th Dist. No. 04CA008453, 2004-Ohio-6266.

       {¶19} If a plaintiff establishes a prima facie case of defamation, the

defendant may then invoke a conditional or qualified privilege.          Jackson v.

Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶9, citing A &

B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council

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(1995), 73 Ohio St.3d 1, 7, 651 N.E.2d 1283, citing Hahn v. Kotten (1975), 43

Ohio St.2d 237, 243, 331 N.E.2d 713. “Where the circumstances of the occasion

for the alleged defamatory communications are not in dispute, the determination of

whether the occasion gives the privilege is a question of law for the court.” A & B-

Abell, 73 Ohio St.3d at 7. The defense of conditional or qualified privilege applies

to all of the plaintiff’s derivative claims, such as tortious interference with an

employment relationship, as well as the defamation claim. A & B-Abell, 73 Ohio

St.3d at 14-16.

       {¶20} “The essential elements of a conditionally privileged communication

may accordingly be enumerated as good faith, an interest to be upheld, a statement

limited in its scope to this purpose, a proper occasion, and publication in a proper

manner and to proper parties only.” Hahn, 43 Ohio St.2d at 246.                If the

communication is privileged, the plaintiff may not recover unless he/she

demonstrates that the defendant made the statement(s) with actual malice, such as:

ill will, spite, grudge, or some ulterior motive. Id. at 248, citing DeAngelo v. W. T.

Grant Co. (1952), 111 N.E.2d 773, 776.

       {¶21} Actual malice includes “‘acting with knowledge that the statements

are false or acting with reckless disregard as to their truth or falsity.”’ Jackson,

2008-Ohio-1041, at ¶10, quoting Jacobs v. Frank (1991), 60 Ohio St.3d 111, 573

N.E.2d 609, paragraph two of the syllabus. “The phrase ‘reckless disregard’

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applies when a publisher of defamatory statements acts with a ‘high degree of

awareness of their probable falsity,’ * * * or when the publisher ‘in fact

entertained serious doubts as to the truth of his publication.’” Id., citations omitted.

       {¶22} The facts of this case are simple and undisputed. On or about May

11, 2009, Worthington reported to Triumph personnel management that his

supervisor, McNett, stood behind him in the restroom while he was using the

urinal, which made him feel harassed and uncomfortable. (Worthington Aff. at

¶¶3-4); (McNett Depo. at 44).         McNett did not recall any other statements

Worthington made other than the allegation he made to Triumph personnel

management on May 11, 2009. (McNett Depo. at 63-66).                Although McNett

testified that one co-worker, Terry Gibson, stated to him, “I heard you and

[Worthington] got into a fight and you were terminated for it,” McNett testified

that Gibson did not indicate that Worthington told him about the incident. (Id. at

71). In fact, McNett could not identify anyone who told him that Worthington told

them about the incident. (Id. at 72). McNett further testified that employees had a

right to file complaints against other employees, and that Triumph has a duty to

investigate the allegations. (Id. at 96-99).

       {¶23} Although the evidence establishes a prima facie case for defamation

and tortious interference with an employment relationship, the evidence also

demonstrates that Worthington’s statements were privileged. That is, Worthington

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made the statements in good faith to Triumph’s personnel management during a

closed-door meeting to protect his interest in a harassment-free work environment.

Hahn, 43 Ohio St.2d at 246. McNett acknowledged Worthington’s right to report

his concerns to personnel management. (McNett Depo. at 96-99). McNett failed

to present any evidence that Worthington acted with actual malice other than his

bald assertions in his response to the motion for summary judgment. Notably,

even McNett’s affidavit fails to claim that Worthington acted with actual malice.

(Doc. No. 57, attached).

       {¶24} Furthermore, with respect to McNett’s claim for tortious interference

with   an    employment    relationship,     McNett   failed   to   demonstrate   that

Worthington’s statements were the proximate cause of his termination. The record

indicates that Triumph terminated McNett for his “inflexibility, combativeness,

belligerence and questionable supervisory methods,” as well as his unwillingness

to take direction from his immediate supervisor or human resources counsel.

(Triumph’s Response to McNett’s EEOC Complaint and Kenneth Jackson Aff.,

Doc. No. 51, attached). Triumph stated that “McNett was not terminated on the

basis of statements made by anyone else. He was terminated based upon actions

he himself took, or did not take, that proved he was a poor choice of Supervisor at

Triumph Thermal Systems, Inc.” (Triumph’s EEOC Response, Doc. No. 51,

attached).

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       {¶25} Since Worthington’s statements were privileged, and McNett failed

to submit any evidence that Worthington made the statements with actual malice,

Worthington was entitled to judgment as a matter of law on both claims.

Worthington was entitled to judgment as a matter of law on McNett’s tortious

interference with an employment relationship claim additionally because the

evidence failed to demonstrate that Worthington’s statements were the proximate

cause of McNett’s termination of employment.

       {¶26} McNett’s second assignment of error is, therefore, overruled.

       {¶27} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS, P.J. and SHAW, J., concur.

/jlr




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