[Cite as Lopez v. Thomas, 2014-Ohio-2513.]


STATE OF OHIO                   )                   IN THE COURT OF APPEALS
                                )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

LUTHER LOPEZ                                        C.A. No.       27115

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
JAZMINE THOMAS                                      COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellee                                    CASE No.   CV 2012 09 5438

                                DECISION AND JOURNAL ENTRY

Dated: June 11, 2014



        WHITMORE, Judge.

        {¶1}    Plaintiff-Appellant, Luther Lopez, appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms.

                                                I

        {¶2}    In June 2012, Lopez and Defendant-Appellee, Jazmine Thomas, were both

employees of Labor Ready, a temporary employment agency. It was customary for Labor Ready

employees to ride together to their assigned work locations after reporting to Labor Ready in the

morning. On June 11, 2012, Lopez and Thomas were assigned to work at the McJak Candy

Company (“McJak Candy”) and rode there together.

        {¶3}    Two days after their shared ride, Thomas supplied Labor Ready with a written

statement about Lopez. Thomas wrote that, during their car ride together, Lopez divulged that he

was going to file a grievance against their supervisor at McJak Candy. The grievance would

accuse the supervisor of racial discrimination. According to Thomas, Lopez said that he was
                                                2


filing the grievance as a preventative measure because he felt that the supervisor was planning on

telling Labor Ready not to assign him to work at McJak Candy anymore. According to Thomas,

Lopez also said that he had employed similar tactics with companies in the past to avoid

termination or to seek compensation and that he was very knowledgeable about civil law.

Thomas told her supervisor at McJak Candy what Lopez had said.

       {¶4}    The day after Thomas wrote her statement, Lopez drove to Labor Ready and

confronted Thomas in the parking lot. When their conversation ended, Thomas went inside and

told one of the Labor Ready staff members that Lopez had threatened her. Lopez was then asked

to leave the premises. Labor Ready asked Thomas to complete a written statement about the

incident, but Thomas did not immediately do so. Instead, she completed a statement on June 22,

2012, eight days after the conversation occurred. In her statement, Thomas wrote that she “was

threatened by” Lopez after he asked her whether she had “‘snitched’ on him.” Thomas further

wrote that Lopez “said that he was used to f***ing people up that ‘snitched’ on him because he

had been to jail” and that “[h]e told [her] that if he found out that [she] ‘snitched’ on him he

would f*** [her] up too.” Unbeknownst to Thomas, Lopez had recorded the conversation that

the two of them had in the parking lot.

       {¶5}    Subsequently, Lopez filed a defamation suit against Thomas for libel and slander

per se, alleging that he had been damaged as a result of her attributing statements to him that he

had never made. Thomas filed an answer as well as counterclaims for assault and civil liability

for criminal conduct under R.C. 2307.60. After the parties exchanged discovery, however,

Thomas dismissed her counterclaims. The matter proceeded to a bench trial.

       {¶6}    At the close of Lopez’ case-in-chief, Thomas moved for a directed verdict. The

court granted a directed verdict with regard to the verbal statements that Thomas had made.
                                                 3


Specifically, the court found that Lopez had failed to prove that Thomas’ oral statements (that

she was threatened by Lopez) were false. The court denied the motion for directed verdict with

regard to Thomas’ written statements, however, and the defense presented its case-in-chief. At

the close of the evidence, the court entered a judgment of dismissal in favor of Thomas.

       {¶7}    Lopez now appeals and raises five assignments of error for our review. For ease

of analysis, we consolidate all five assignments of error.

                                                 II

                                Assignment of Error Number One

       THE COURT ERRED BY NOT APPLYING THE CORRECT STANDARD IN
       REGARD TO APPELENTS (sic) BURDEN AS TO PROOF OF NEGLIGENCE
       IN LIGHT OF THE FACT THAT APPELLEES (sic) CONDUCT WAS AN
       ASPECT OF NEGLIGENCE AS SHOWN BY THE EVIDENCE AND
       TESTIMONY PRESENTED.

                                Assignment of Error Number Two

       THE COURT ERRED IN ASSUMING SOME SPECIFIC OR RELATED
       GROUNDS FOR RELIEF WAS PRESENTED BY APPELLEE’S COUNSEL
       YET NO SUBSTANTIAL OR SPECIFIC REASON FOR THE DIRECTED
       VERDICT WAS PRESENTED TO THE COURT.

                               Assignment of Error Number Three

       THE COURT ERRED IN NOT EMPLOYING A RECKLESSNESS
       STANDARD IN FAILING TO CONSIDER THAT THE APPELLEE’S
       CONDUCT WAS IN ITSELF RECKLESS AND ESTABLISHED NEGLIGENCE.
       (Emphasis sic.)

                                Assignment of Error Number Four

       THE COURT ERRED BY NOT WEIGHING SUFFICIENCY OF THE
       TESTIMONY AND AUDIO/VIDEO EVIDENCE IN A LIGHT MOST
       FAVORABLE TO APPELLANT.

                                Assignment of Error Number Five

       THE COURT ERRED IN NOT APPLYING A CLEAR AND CONVINCING
       EVIDENCE STANDARD WHEN IT DETERMINED WHETHER THE
       APPELLEES (sic) DIRECTED VERDICT ESTABLISHED ANY PROXIMATE
                                                 4


       CAUSE TO OUTWEIGH THE MANIFEST WEIGHT OF THE EVIDENCE OR
       TESTIMONY.

       {¶8}    In his assignments of error, Lopez argues that the trial court applied the incorrect

legal standard when analyzing various concepts and that its ultimate decision to enter judgment

in favor of Thomas was in error. We disagree.

       {¶9}    Initially, we note that Lopez represented himself in the court below and also

appears pro se on appeal. With respect to pro se litigants, this Court has observed that

       pro se litigants should be granted reasonable leeway such that their motions and
       pleadings should be liberally construed so as to decide the issues on the merits, as
       opposed to technicalities. However, a pro se litigant is presumed to have
       knowledge of the law and correct legal procedures so that he remains subject to
       the same rules and procedures to which represented litigants are bound. He is not
       given greater rights than represented parties, and must bear the consequences of
       his mistakes. This Court, therefore, must hold [pro se appellants] to the same
       standard as any represented party.

(Internal citations omitted.) Sherlock v. Myers, 9th Dist. Summit No. 22071, 2004-Ohio-5178, ¶

3; Countrywide Home Loans Servicing, L.P. v. Murphy-Kesling, 9th Dist. Summit No. 25297,

2010-Ohio-6000, ¶ 4. “[W]hile this Court has made every effort to determine and address the

merits of [Lopez’] contentions, he is subject to the same rules and procedures as if he were

represented by an attorney.” State v. Charlton, 9th Dist. Lorain No. 12CA010206, 2014-Ohio-

1330, ¶ 6.

       {¶10} “Defamation is a false publication that injures a person’s reputation.” Gosden v.

Louis, 116 Ohio App.3d 195, 206 (9th Dist.1996). “Written defamation is known as libel;

spoken defamation is known as slander.” Id. at 206. “To prevail in a defamation case, a plaintiff

who is a private person must prove 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
                                                 5


special harm to the plaintiff.’” Northeast Ohio Elite Gymnastics Training Ctr., Inc. v. Osborne,

183 Ohio App.3d 104, 2009-Ohio-2612, ¶ 7 (9th Dist.), quoting Gosden at 206. Damages are

presumed if the matter is defamatory per se, but a defamation plaintiff still must prove the

remaining elements of his or her defamation case. See Gosden at 209.

       {¶11} “Insofar as the truth or falsity of the defamatory statement is concerned, the

question of negligence has sometimes been expressed in terms of the defendant’s state of mind

by asking whether he had reasonable grounds for believing that the communication was true.”

Bays v. Northwestern Local School Dist., 9th Dist. Wayne No. 98CA0027, 1999 WL 514029, *4

(July 21, 1999), quoting 3 Restatement of the Law 2d, Torts, Section 580(B), Comment g (1977).

“[T]he plaintiff must prove by clear and convincing evidence that the defendant failed to act

reasonably in attempting to discover the truth or falsity or defamatory character of the

publication.” Lansdowne v. Beacon Journal Pub. Co., 32 Ohio St.3d 176, 180 (1987). Accord

Gosden at 213. “Clear and convincing evidence is that measure or degree of proof which * * *

will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to

be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

Oral Statements

       {¶12} In his case-in-chief, Lopez called Thomas on cross-examination.               Thomas

testified that she and Lopez were riding together to McJak Candy one day when he told her that

he was going to file a race-based grievance against their supervisor as leverage to protect himself

against possible employment action. Thomas admitted that she completed a written statement

for Labor Ready on June 13, 2012, to document the conversation. She also admitted that she told

her supervisor at McJak Candy about the grievance that Lopez planned on filing.
                                                6


       {¶13} Thomas testified that she was already at Labor Ready on the morning of June 14,

2012, when Lopez came inside and asked her to step outside with him. Once the two were

outside, Lopez informed Thomas that he was almost twice her age and had been to prison before,

so he had more life experience. Thomas testified that Lopez gave her a “history about people

who have snitched on other people and have received [] serious bodily harm or even death.”

Thomas further testified that Lopez made her feel very uncomfortable and that she took his

speech as a threat. Thomas admitted that, when the conversation ended and she went back

inside, she told one of the Labor Ready supervisors that Lopez had threatened her. She further

admitted telling several other individuals that Lopez had threatened her. Thomas explained that

she said Lopez had threatened her because that was how she felt after their conversation.

       {¶14} Lopez indicated that his conversation with Thomas was spontaneous. According

to Lopez, he drove to Labor Ready on June 14th to let them know that he would not be working

that day and he simply ran into Thomas in the parking lot. Lopez testified that he never

threatened Thomas, but that he confronted her because he suspected that she had shared their

private conversation with their supervisor. According to Lopez, Thomas had a reputation for

discussing the affairs of her fellow employees with their employer and he wanted to warn her

that, if she continued to report her fellow employees, someday someone might become violent

with her. Lopez claimed that he told Thomas about his time in prison because he wanted her to

know that, even in a supposedly secure facility, people who inform on others often suffer

repercussions. Lopez testified that his statements to Thomas were “just a lesson for her.”

       {¶15} Lopez presented a recording of the conversation that he had with Thomas in the

parking lot. The recording is both an audio and visual recording, but the visual component is

lacking because the recording device was attached to Lopez’ wrist and subjected to virtually
                                                7


constant movement. On the recording, Lopez can be heard asking Thomas her age, comparing it

to his own, telling her about his time in prison, and questioning her about her familiarity with

history, including the history of slavery and the civil rights movement. Lopez never overtly

threatens Thomas on the recording, but makes multiple statements about the consequences

people have suffered throughout history after deciding to inform on other people. Moreover, he

continues to do so even after Thomas repeatedly states that he is offending her and that she does

not understand why he is “coming at [her]” in that manner. The tone Lopez adopts while

speaking with Thomas is a careful, but not congenial, one.

       {¶16} Lopez argued that Thomas committed slander when she told others that he had

threatened her. The trial court rejected his argument and directed a verdict in Thomas’ favor.

Lopez argues that the court erred by doing so because Thomas’ motion for directed verdict failed

to satisfy the specificity requirements of Civ.R. 50. He further argues that (1) the court’s

decision is against the weight of the evidence, (2) defense counsel impugned his character by

discussing his “time served for past acts in the penitentiary,” (3) defense counsel relied upon

hearsay, (4) defense counsel “assume[d] facts not in evidence” by telling the court that Lopez

had filed suit against McJak Candy and Labor Ready for retaliation, and (5) defense counsel

improperly told the court that he believed Thomas’ oral statements that Lopez had threatened her

were accurate.

       {¶17} “Although the trial court labeled its decision a directed verdict, it was actually an

involuntary dismissal under Civ.R. 41(B)(2).” Hill Hardman Oldfield, L.L.C. v. Gilbert, 190

Ohio App.3d 743, 2010-Ohio-5733, ¶ 8 (9th Dist.). That is because motions for directed verdict

under Civ.R. 50 are “only appropriate when a matter is being tried to a jury.” McGill v. Image

Scapes, LLC, 9th Dist. Medina No. 10CA0043-M, 2010-Ohio-6246, ¶ 6. While a motion for
                                                 8


directed verdict challenges the sufficiency of the evidence and requires the court to view all the

evidence in a light most favorable to the non-moving party, a motion for involuntary dismissal

under Civ.R. 41(B)(2) does not. Alh Properties, P.L.L. v. Procare Automotive Service Solutions,

L.L.C., 9th Dist. Summit No. 20991, 2002-Ohio-4246, ¶ 9. In ruling on an involuntary dismissal

under Civ.R. 41(B)(2), “the court weighs the evidence, resolves any conflicts, and may render

judgment in favor of the defendant if the plaintiff has shown no right to relief.” Id.

         {¶18} Because Thomas’ motion for a directed verdict was, in actuality, a motion for

involuntary dismissal, Civ.R. 50 did not apply to it. See McGill at ¶ 6. We, therefore, reject

Lopez’ argument that the court should have denied the motion on procedural grounds, for failure

to comply with Civ.R. 50. Next, we consider whether the court’s decision was against the

manifest weight of the evidence. See Alh Properties, P.L.L. at ¶ 10.

         When reviewing the manifest weight of the evidence in a civil case, this Court
         “weighs the evidence and all reasonable inferences, considers the credibility of
         witnesses and determines whether in resolving conflicts in the evidence, the
         [finder of fact] clearly lost its way and created such a manifest miscarriage of
         justice that the [judgment] must be reversed and a new trial ordered.”

Sutton v. Douglas, 9th Dist. Summit No. 26958, 2014-Ohio-1337, ¶ 22, quoting Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20.

         {¶19} The trial court noted that Lopez’ slander claim required him to prove that

Thomas’ oral statements (that Lopez had threatened her) were false. The court determined that

Lopez had failed to do so, so he was not entitled to relief. Lopez argues that the court’s decision

is against the manifest weight of the evidence because Thomas repeatedly contradicted herself at

trial.   His brief contains numerous transcript citations in support of his argument, but the

citations cover a large portion of Thomas’ testimony as well as portions of her counsel’s opening

statement. This Court is unable to discern how the citations relate to Lopez’ argument that
                                                   9


Thomas contradicted herself. Accordingly, we focus on the two specific instances of alleged

contradiction that Lopez discusses in his brief.

       {¶20} On cross-examination, Thomas initially testified that she did not immediately tell

her supervisor at McJak Candy about the grievance Lopez planned to file. Lopez then showed

Thomas the written statement she completed on June 13, 2012. In the statement, Thomas wrote

that she told her supervisor at McJak Candy about Lopez’ grievance on the same day that she

found out about the grievance from Lopez. After reviewing her written statement, Thomas

conceded that she must have told her supervisor about the grievance on the same day that she

found out about it. She testified that she just did not remember doing so. Lopez points to the

foregoing as evidence that Thomas gave conflicting testimony. He also argues that Thomas

contradicted herself when she testified that she “ha[d] no knowledge of grievance procedures yet

file[d] a grievance.”

       {¶21} Once Lopez showed Thomas her written statement from June 13th, she fully

acknowledged that she had made a mistake about the timing of when she told her supervisor at

McJak Candy about Lopez’ grievance. Further, there is no evidence in the record that Thomas

filed a “grievance” against Lopez. Thomas completed written statements at Labor Ready’s

request to record (1) what Lopez told her during their car ride, and (2) what happened during

their exchange in the parking lot. It is not clear from the record that Thomas understood what

Lopez meant when he asked her whether she had knowledge of Labor Ready’s grievance

procedures. In any event, the trial court was in the best position to view Thomas and to assess

her credibility with regard to her alleged contradictions. See Magnum Steel & Trading, L.L.C. v.

Mink, 9th Dist. Summit Nos. 26127 & 26231, 2013-Ohio-2431, ¶ 29.
                                                  10


       {¶22} Although Lopez never directly threatened to harm Thomas on the recording he

presented at trial, threats need not always be overt. Lopez couched his statements in terms of

generalities, but they conveyed the message that people who betray others to their superiors have

reason to fear for their safety. Moreover, Lopez’ statements must be viewed in context. Lopez

did not convey the foregoing message to Thomas for no reason. He did so because he suspected

that she had just told their superiors about his plan to file a grievance.

       {¶23} Thomas explained that the reason she said Lopez had threatened her was that, as a

result of their conversation, that is how she felt. Having reviewed the record, we cannot

conclude that the trier of fact clearly lost its way and created a manifest miscarriage of justice

when it chose to believe her and concluded that her statements were not false. See Eastley, 132

Ohio St.3d 328, 2012-Ohio-2179, at ¶ 20. We, therefore, reject Lopez’ argument that the trial

court’s decision is against the manifest weight of the evidence.

       {¶24} To the extent Lopez argues that defense counsel improperly impugned his

character and relied upon hearsay, we note that Lopez was responsible for the introduction of

that evidence. Lopez entered the recording of his conversation with Thomas into evidence. In

the recording, Lopez tells Thomas about his experiences in prison.           Near the end of the

recording, a Labor Ready supervisor approaches Lopez and makes several statements to him,

including that Lopez is making him feel uncomfortable. The supervisor’s recorded statements

are the “hearsay” statements that Lopez claims defense counsel improperly relied upon. Because

Lopez introduced the recording into evidence, however, he cannot now complain that either the

court or defense counsel relied upon certain aspects of its content. See State v. Campbell, 90

Ohio St.3d 320, 324 (2000), quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., 28 Ohio
                                                11


St.3d 20 (1986), paragraph one of the syllabus (“The doctrine of invited error holds that a litigant

may not ‘take advantage of an error which he himself invited or induced.’”).

        {¶25} Finally, to the extent Lopez argues that defense counsel improperly told the court

about another suit Lopez had filed and stated his personal opinion about the veracity of Thomas’

statements, we note that this was a bench trial. “There is a presumption in a bench trial that the

trial judge knows and follows the law, and only considers matter properly before it.” State v.

Pleban, 9th Dist. Lorain No. 10CA009789, 2011-Ohio-3254, ¶ 45. Even assuming that defense

counsel’s statements were improper, Lopez has not explained how the statements prejudiced his

case.

        {¶26} In sum, Lopez has not shown that the trial court erred by entering judgment in

Thomas’ favor with respect to Lopez’ claim of slander.

Written Statements

        {¶27} After her encounter with Lopez in the parking lot on June 14, 2012, Labor Ready

asked Thomas to complete a written statement about the incident. Thomas testified that she did

not have time to write out a statement that day because she was busy working. Instead, she

arranged to arrive early at work on June 22, 2012, to complete the statement. Her written

statement reads as follows:

        I Jazmine Thomas was threatened by Luther Lopez. He came to Labor Ready and
        asked me to come outside. I went outside and he asked me if I “snitched” on him
        about writing a grievance against [the supervisor] from McJak [Candy]. I said no
        and asked him why he would ask me that. He stated that he felt like I was
        watching him at work and I told him that he was just being paranoid. He then
        began to tell me that he was 40 yrs old and I was only 21 so he knows more than
        me. He said that he was used to f[***]ing people up that “snitched” on him
        because he had been to jail. He told me that if he found out that I “snitched” on
        him he would f[***] me up too. I was offended and afraid so I went inside and
        told [the supervisors at Labor Ready].
                                                12


Thomas testified that her written statement was not meant to convey exactly what Thomas had

told her. She testified that she wrote the statement based on how she felt about what Lopez had

said, which she took as “more of * * *an indirect * * * threat to me.”

       {¶28} Lopez argued that Thomas committed libel when she attributed threatening

statements to him that he never made, as evidenced by the recording of his conversation with her.

The trial court acknowledged that Lopez never used the exact words contained in Thomas’

statement, but determined that her statement was not meant to convey exact quotes. The court

held that Thomas relied upon colloquialisms in recalling her conversation with Lopez and that

Thomas “took [her conversation with Lopez] as * * * any reasonable human being would have

taken it.” The court noted that Lopez was “street savvy” and his message to Thomas was clear:

“don’t snitch or else.” The court determined that Thomas was entitled to judgment because her

written statements were neither false, nor negligently made.

       {¶29} As the libel plaintiff, Lopez had to prove, by clear and convincing evidence, that

Thomas was at least negligent in conveying false statements to others. See Lansdowne, 32 Ohio

St.3d at 180; Northeast Ohio Elite Gymnastics Training Ctr., Inc., 183 Ohio App.3d 104, 2009-

Ohio-2612, at ¶ 7, quoting Gosden, 116 Ohio App.3d at 206. To do so, he had to prove that

Thomas lacked reasonable grounds for believing that her written statements were true. See Bays,

1999 WL 514029, at *4. Having reviewed the record, we cannot conclude that the trial court lost

its way when it determined that Thomas was entitled to a judgment of dismissal.

       {¶30} Thomas did not have the recording of her conversation with Thomas with her

when she completed her written statement eight days after the incident. Instead, Thomas relied

upon her memory to document the incident and acknowledged at trial that her statement did not

reflect the exact words that Thomas had used. Notably, while Thomas used quotations marks to
                                               13


denote the word “snitched” in her statement, she did not use quotations marks when writing

down that Lopez said he was “used to f[***]ing people up that ‘snitched’ on him” and would

“f[***] [her] up too” if he found out that she had done so. See generally Brooks v. Lady Foot

Locker, 9th Dist. Summit No. 22297, 2005-Ohio-2394, ¶ 48-49 (plaintiffs failed to prove

statement was false and defamatory when defendant only stated he had a suspicion that they had

stolen items from a store and plaintiffs did not provide any direct quotes to substantiate their

testimony). This Court has reviewed the recording of the conversation between Lopez and

Thomas. Considering the recording in the context of the events at issue here, we must conclude

that Thomas had reasonable grounds to believe that her written statements were true. See Bays at

*4. Consequently, Lopez failed to prove, by clear and convincing evidence, that Thomas was

negligent in conveying her statements to others. See id. The trial court did not err by entering a

judgment of dismissal on Thomas’ behalf with regard to Lopez’ claim for libel.

       {¶31} The record supports the trial court’s decision to enter judgment in favor of

Thomas. As such, Lopez’ assignments of error are overruled.

                                               III

       {¶32} Lopez’ assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                14


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



HENSAL, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

LUTHER LOPEZ, pro se, Appellant.

RONALD T. GATTS, Attorney at Law, for Appellee.
