[Cite as Mills Van Lines, Inc. v. Prudential Real Estate & Relocation Servs., 2011-Ohio-3833.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                Nos. 95582 and 95819




                             MILLS VAN LINES INC.
                                                            PLAINTIFF-APPELLANT

                                                      vs.

                PRUDENTIAL REAL ESTATE
             AND RELOCATION SERVICES, ET AL.
                                                            DEFENDANTS-APPELLEES




                                           JUDGMENT:
                                            AFFIRMED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CV-554526

        BEFORE:            Rocco, J., Stewart, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                                 August 4, 2011
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ATTORNEY FOR APPELLANT

James A. Hofelich
James A. Hofelich, LPA
28180 Detroit Avenue C-1
Westlake, Ohio 44145

ATTORNEYS FOR APPELLEES

Marquettes D. Robinson
Amanda J. Martinsek
Thacker Martinsek LPA
1375 East 9th Street
Suite 2330
Cleveland, Ohio 44114




KENNETH A. ROCCO, J.:

       {¶ 1} Plaintiff-appellant, Mills Van Lines, Inc. (“appellant”), appeals

from    the   trial   court   order   that    granted   summary   judgment   to

defendants-appellees, Prudential Real Estate and Relocation Services and

Hardy Jackson (referred to collectively as “Prudential” or “appellee”), on

causes of action for defamation and tortious interference with a business

relationship. Finding no merit to this appeal, we affirm.
                                      3

      {¶ 2} Appellant is a trucking company that moves and stores household

goods within Ohio and provided moving services to several of appellee’s

clients.   Appellee provides relocation management services to corporations

and governments worldwide.         As is pertinent to this case, appellee

essentially acts as the middle-man between appellant and appellee’s clients

by managing the transportation and storage of household goods of its clients’

relocating employees, commonly referred to as “transferees.”           Hardy

Jackson is the Vice President of Global Transportation Alliance for

Prudential.

      {¶ 3} After    working   with    appellant    for   sometime,   appellee

recommended appellant to be the primary provider of moving services to the

transferees of Toyota Manufacturing North America, a large automobile

manufacturer which provides relocation benefits to its executives and

employees. Appellee had a contractual relationship with Toyota since 1996.

Toyota accepted appellee’s recommendation and in 2001, appellant began

transporting and storing all of Toyota transferees’ household goods.

Appellee’s contract with Toyota required it to audit all vendor invoices to

verify mathematical accuracy, compare invoices with initial estimates, and

verify that the services billed to Toyota were actually performed.
                                     4

      {¶ 4} In early 2004, while performing its routine auditing obligations,

appellee began noticing on appellant’s invoices to Toyota an unusual

frequency in the occurrence of long carries, shuttle usage, unpacking services,

and stair carries without authorization.     Concerned, appellee re-reviewed

several previous months of appellant’s invoices, almost all of which appellee

already paid on behalf of Toyota.

      {¶ 5} After appellee’s search revealed unsatisfactory results, appellee

then contacted recent Toyota transferees to inquire whether there were

stairs, excessive distances, narrow streets, and unpacking services to justify

the extra charges. Of the transferees appellee successfully contacted, a large

number of them provided information indicating these were charges for

unnecessary services as well as services never performed.

      {¶ 6} Appellee’s findings caused it to bring the billing discrepancies to

Toyota’s attention.   Appellee and Toyota agreed to hire RIS Consulting

Group (“RIS”), an outside third-party, to review the recent invoices, contact

the transferees, and report its findings.   The RIS investigation also found

instances of overcharging.

      {¶ 7} Thereafter,   appellee   and    Toyota   afforded   appellant   the

opportunity to respond to the results of the investigations. Unsatisfied with
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their response, Toyota terminated its business relationship with appellant

three months later.

      {¶ 8} On February 11, 2005, this lawsuit ensued.       Appellant filed a

complaint alleging an account claim, as well as claims for defamation and

tortious interference with a business contract. 1   Appellant alleged it was

defamed by appellee’s statements to Toyota that appellant overcharged for

moving services. Appellant also claimed that these false statements caused

Toyota to terminate its business relationship with appellant. Following the

trial court’s denial of a number of appellee’s motions to dismiss, appellee

answered the complaint and asserted fraud and unjust enrichment

counterclaims.

      {¶ 9} A lengthy discovery process then ensued that included numerous

extensions in the deadline. Also, during this process, without attempting to

cooperatively schedule the depositions of any of appellee’s witnesses,

appellant, on October 15, 2008, faxed appellee ten notices of depositions, nine

of which were for third-party witnesses.        Appellee asked appellant to

withdraw the notices, and instead, issue subpoenas as many of the witnesses

resided out-of-state.   Appellant refused and appellee filed a motion for

      1
        Appellant also made a claim that appellee violated Ohio’s intrastate
regulations of the moving of household goods but the trial court dismissed that
count on December 17, 2007.
                                     6

protective order on October 17, 2008. Appellee inadvertently failed to serve

said motion upon appellant. Then, on November 3, 2008, the day of the final

discovery deadline, the trial court granted the motion for protective order.

Appellant moved to vacate the protective order on November 14, 2008, citing

failure of service. The trial court denied the motion on November 24, 2008,

apparently finding service irrelevant to the ultimate outcome of the motion.

      {¶ 10} On January 5, 2009, appellee moved for summary judgment on

all of appellant’s claims. Appellant moved for an extension to respond to

appellee’s motion.   In a status conference held on February 12, 2009, the

court granted the extension until February 17, 2009.

      {¶ 11} Appellant never responded to the motion for summary judgment,

but rather, filed a number of motions concerning discovery. On February 17,

2009, appellant filed a motion to strike Exhibits 19 and 20 as well as a motion

in limine to exclude any offers to compromise from the motion for summary

judgment. Additionally, ten days later, appellant filed a motion to strike the

affidavits attached to appellee’s motion for summary judgment alleging a

violation of the hearsay rules. Appellant also moved for additional time to

conduct discovery and oppose the motion for summary judgment pursuant to

Civ.R. 56(F). Finally, in March of 2009, appellant filed a motion to compel

appellee to produce additional documents and to revise its response to an
                                      7

interrogatory that sought the identity of employees who participated in

appellant’s internal investigation into the overcharging.

      {¶ 12} On March 31, 2009, the trial court denied appellant’s Civ.R. 56(F)

motion and motion to compel. A few days later, on April 2, 2009, the trial

court also denied appellant’s motions to strike Exhibits 19 and 20 and the

affidavits.   The court, however, granted appellee’s motion for summary

judgment as to appellant’s claims for defamation and tortious interference

only. The court denied appellee summary judgment on appellant’s account

claim and appellee’s counterclaims for fraud and unjust enrichment.

      {¶ 13} On November 20, 2009, appellant filed a motion for relief from

judgment pursuant to Civ.R. 60(B). On December 14, 2009, the trial court

denied this motion.

      {¶ 14} For the remaining claims, the trial court scheduled the trial for

July 19, 2010. On the day of trial, the trial court granted appellant’s motion

in limine to exclude Exhibits 19 and 20 pursuant to Evid.R. 408. That same

day, the parties settled all remaining claims.

      {¶ 15} In August of 2010, appellant filed a second Civ.R. 60(B) motion,

renewing its first motion, which the trial court again denied a month later.

Appellant now timely appeals and presents the following six assigned errors

for our review:
                               8

“I.     The trial court erred in its ruling on March 31, 2009

granting in part defendants’ motion for summary judgment that

the defendants are entitled to judgment on the claim of

defamation/tortious interference as a matter of law.

“II.    The trial court erred and abused its discretion in ruling on

March 31, 2009 denying plaintiff Mills Van Lines, Inc., (1)

motion to strike exhibits 19 & 20 and in limine regarding offers

to compromise and (2) motion to strike affidavits attached to

defendants’ motion for summary judgment.

“III.   The trial court erred and abused its discretion in ruling

on March 31, 2009 denying plaintiff Mills Van Lines, Inc., (1)

motion     pursuant    to Civ.R. 56(F), (2) motion to compel

defendants to completely and accurately answer plaintiff’s

interrogatory no. 1 and (3) motion to compel defendants to

produce requested documents in plaintiff’s second request for

production of documents pursuant to Civ.R. 37(A).

“IV.    The trial court erred and abused its discretion in ruling

on November 24, 2008 denying plaintiff Mills Vans [sic] Lines,

Inc., motion to vacate protective order.
                                     9

      “V.    The trial court erred and abused its discretion in ruling on

      December 14, 2009 denying plaintiff’s motion pursuant to Civ.R.

      60(B)(1) and (5).

      “VI.   The trial court erred and abused its discretion in ruling

      denying plaintiff’s motion pursuant to Civ.R. 60(B)(1) and (5)

      filed August 27, 2010 entered on September 23, 2010.”

                             SUMMARY JUDGMENT

      {¶ 16} First, appellant argues that the trial court erred in granting

appellee partial summary judgment as to appellant’s claims for defamation

and tortious interference.   Even assuming appellee made a defamatory

statement that tortiously interfered with appellant’s business relationship

with Toyota, appellee, nevertheless, is immune from liability due to its

qualified privilege of a common business interest with Toyota.      Thus, we

affirm the trial court’s grant of partial summary judgment.

      {¶ 17} Where a plaintiff establishes a prima facie case of defamation or

tortious interference, the defendant may invoke a qualified privilege defense.

A & B-Abell Elevator Co., Inc. v. Columbus/Cent. Ohio Bldg. & Constr.

Trades Council, 73 Ohio St.3d 1, 15, 1995-Ohio-66, 651 N.E.2d 1283;

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

571, ¶118.     Statements between parties concerning a common business
                                     10

interest may be protected by a qualified privilege. Evely v. Carlon Co., Div.

of Indian Head, Inc. (1983), 4 Ohio St.3d 163, 165, 447 N.E.2d 1290.

Generally, a communication is qualifiedly privileged when it is “‘made in good

faith on any subject matter in which the person communicating has an

interest, or in reference to which he has a duty * * * if made to a person

having a corresponding interest or duty, even though it contains matter

which, without this privilege, would be actionable [.]’”      Hahn v. Kotten

(1975), 43 Ohio St.2d 237, 246, 331 N.E.2d 713. The elements needed to

prove a privilege are “‘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.’” Id.

      {¶ 18} Assuming without deciding that appellant is able to demonstrate

a claim for defamation or tortious interference, we nevertheless affirm the

judgment of the trial court granting appellee’s partial summary judgment,

because the evidence indisputably establishes that appellee’s communications

to Toyota are qualifiedly privileged.       The statements to Toyota that an

investigation revealed appellant overcharged Toyota for moving services were

made in good faith. Toyota contracted with appellee to audit the moving

services provided to Toyota transferees. During its routine examinations of

the billing of appellant’s services, appellee noticed some unusual frequency in
                                         11

the occurrence of long carries, shuttle usage, unpackaging charges, and stair

carries     without    authorization.    In     response,   it   conducted   its   own

investigation, which entailed contacting a number of Toyota’s transferees to

inquire about the charges.          This investigation revealed a pattern of

overcharging.     Next, appellee, at the behest of Toyota and in an effort to be

thorough and impartial, hired an outside consulting firm, RIS, to review its

findings.      RIS’s    independent     review    also   indicated   appellant     was

overcharging Toyota.        There can be no dispute that appellee, during the

proper occasion, made the limited-in-scope publication to Toyota on a subject

matter that it had interest, right and duty to speak. Appellee had a

contractual relationship with both appellant and Toyota and was hired by

Toyota for the specific purpose to verify these charges. Accordingly, appellee

possessed a qualified privilege to make this statement to Toyota.

      {¶ 19} Once a defendant demonstrates the existence of the qualified

privilege, a plaintiff can only prevail upon a showing of actual malice.

Hanley v. Riverside Methodist Hosp. (1991), 78 Ohio App.3d 73, 81, 603

N.E.2d 1126. A statement is made with actual malice if the speaker knew it

was false or acted with reckless disregard to whether it was false. Kremer v.

Cox (1996), 114 Ohio App.3d 41, 682 N.E.2d 1006. Reckless disregard for the

truth is more than mere negligence.           Kremer, supra.      The plaintiff must
                                     12

demonstrate that the defendant was highly aware of the probability of falsity.

Jacobs v. Frank (1991), 60 Ohio St.3d 111, 115, 573 N.E.2d 609.            The

subjective belief of the speaker must be considered in determining whether a

statement was made with actual malice.       Lakota Loc. School Dist. Bd. of

Edn. v. Brickner (1996), 108 Ohio App.3d 637, 649, 671 N.E.2d 578.

      {¶ 20} In this case, the record is void of any evidence indicating actual

malice by appellee.   Appellant continually argues that it did not overcharge

Toyota.    The relevant inquiry, however, is not whether appellant

overcharged Toyota, but the subjective intent of appellee, i.e., whether

appellee told Toyota that appellant was overcharging Toyota when it knew, as

a matter of fact, that overcharging was not occurring.

      {¶ 21} Here, the evidence demonstrates that at all times, both prior to

and after making the statement to Toyota, appellee reasonably believed

appellant was overcharging Toyota. Appellee conducted its own review of

the charges, contacted transferees, and hired an independent third-party,

RIS, to investigate whether appellant overcharged Toyota. Such actions do

not indicate a knowledge that the statement was false. Nor do these actions

indicate a reckless disregard for the truth. In fact, appellee went to great

lengths to verify its findings and did so in a strategic and careful manner.

Accordingly, we find no actual malice.       The trial court did not err in
                                      13

granting appellee summary judgment as to appellant’s claims for defamation

and tortious interference.

                                    DISCOVERY

      {¶ 22} In its second, third, and fourth assignments of error, appellant

makes a number of arguments concerning discovery issues. First, appellant

asserts that Exhibits 19 and 20, a spreadsheet and cover letter prepared by

Robert Mills in response to the overcharging allegations, are inadmissible

pursuant to Evid.R. 408 as offers to compromise. Appellee presented these

documents in its motion for summary judgment to establish that appellant

admitted to overcharging Toyota for the moving services, thereby establishing

the defense of truth to the defamation action. Such information is irrelevant.

 It goes to the falsity element in a defamation action or the intentional

interference element of tortious interference claim.       We have already

determined that appellee possesses a qualified privilege rebutting any prima

facie case of defamation or tortious interference.

      {¶ 23} The same holds true for the remaining discovery issues presented

in appellant’s second, third, and fourth assignments of error.     In each of

these assigned errors, appellant argues that, had the decision of the trial

court been different concerning the discovery issues, appellant would have

had evidence either excluded or admitted demonstrating that appellant did
                                     14

not overcharge Toyota. Again, because we find that appellee possessed the

qualified “common business interest” privilege, we find any such arguments

irrelevant to the outcome of summary judgment.

                 MOTIONS FOR RELIEF FROM JUDGMENT

      {¶ 24} In its last two assignments of error, appellant argues that the

trial court erred in denying its two Civ.R. 60(B) motions to vacate the

summary judgment award. Appellant argues it is entitled to relief under

Civ.R. 60(B)(1) and (5). A review of the record indicates the contrary.

      {¶ 25} We review the trial court’s decision on a motion to vacate for

abuse of discretion. See, e.g., Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio

St.3d 17, 20, 520 N.E.2d 564. To prevail on a motion for relief from judgment

pursuant to Civ.R. 60(B), the movant must demonstrate: (1) a meritorious

claim or defense; (2) entitlement to relief under one of the grounds stated in

Civ.R. 60(B)(1) through (5); and (3) timeliness of the motion. GTE Automatic

Elec., Inc. v. ARC Indus., Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113,

paragraph two of the syllabus.

      {¶ 26} Assuming arguendo that appellant has a meritorious claim, we

nevertheless find appellant is not entitled to relief pursuant to either Civ.R.

60(B)(1) or (5). First, appellant asserts that it is entitled to relief from the

partial summary judgment award pursuant to Civ.R. 60(B)(1) because the
                                        15

trial court rendered excusable neglect when it issued its judgment entry on

February 13, 2009 granting appellant only four days to respond to appellee’s

summary judgment motion. Appellant also argues that the entry mistakenly

identifies appellant as “Defendant” and appellee as “Plaintiff.”          Appellant

maintains it was confused and believed it had until February 27, 2009 to file

its brief in opposition.

      {¶ 27} The record reflects that appellant was present at a pretrial when

the court made clear that it extended appellant’s deadline to respond to

appellee’s summary judgment until February 17, 2009.               Additionally, the

order reads in its entirety:

      {¶ 28} “Mills Van Lines Inc. motion for extension of time to respond to

motion for summary judgment James A. Hofelich 0033009, filed 02/05/2009,

is granted. Defendant shall file brief on or before 2/17/09. No extensions

shall be granted for any reason.

      {¶ 29} Plaintiff has until 2/27/09 to file a reply brief.”

      {¶ 30} Admittedly,    the entry mistakenly refers to appellant as

“Defendant” and appellee as “Plaintiff.”         After reading the entire entry,

however, such mistake is minimal. Appellant’s attendance at the pretrial

would have clarified any misunderstanding. Nonetheless, appellant never

filed any response to the motion for summary judgment by February 27, 2009.
                                      16

 Thus, we are uncertain as to whether any such error was not harmless. We

find no excusable neglect warranting relief from judgment.

      {¶ 31} Second, appellant argues that it is entitled to relief under the

“‘catch-all’ provision” of 60(B)(5), which “reflects the inherent power of a court

to relieve a person from the unjust operation of a judgment.” Caruso-Ciresi,

Inc. v. Lohman (1983), 5 Ohio St.3d 64, 448 N.E.2d 1365, paragraph one of

the syllabus. Appellant asserts that it was not afforded access to a “dearth of

evidence” needed to respond to appellee’s summary judgment motion. We

find the exact opposite.

      {¶ 32} This case was filed in February of 2005.    The trial court granted

the parties’ discovery deadlines on numerous occasions, ultimately extending

the deadline until November 3, 2008.         As this last deadline approached,

appellant made no attempts to extend the discovery deadline.            Then, on

February 27, 2009, four years after the initiation of the lawsuit and more

than three months after the discovery deadline lapsed, appellant filed a

Civ.R. 56(F) motion for additional discovery following the filing of a motion

for summary judgment. In light of appellant’s laxadaisical approach to the

discovery deadlines, any decision by the trial court to deny appellant’s motion

is completely within its purview and again relief from judgment is not

appropriate.
                                     17

      {¶ 33} Appellant’s final two assignments of error are overruled and the

judgment of the trial court granting appellee’s partial summary judgment as

to appellant’s defamation and tortious interference claims are affirmed.

      It is ordered that appellees recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



______________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
