[Cite as Pratt v. Univ. of Cincinnati , 2018-Ohio-2162.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


Awadagin Pratt,                                            :
                                                                       No. 17AP-729
                 Plaintiff-Appellant,                      :                and
                                                                       No. 17AP-739
v.                                                         :      (Ct. of Cl. No. 2016-00184)

University of Cincinnati,                                  :   (ACCELERATED CALENDAR)

                 Defendant-Appellee.                       :



                                             D E C I S I O N

                                        Rendered on June 5, 2018


                 On brief: Mezibov Butler, and Marc D. Mezibov, for
                 appellant. Argued: Marc D. Mezibov.

                 On brief: Michael DeWine, Attorney General, and Velda K.
                 Hofacker, for appellee. Argued: Velda K. Hofacker.

                             APPEALS from the Court of Claims of Ohio

LUPER SCHUSTER, J.
        {¶ 1} Plaintiff-appellant, Awadagin Pratt, appeals from a judgment entry of the
Court of Claims of Ohio granting the motion for summary judgment of defendant-appellee,
University of Cincinnati ("the university"). Pratt additionally appeals from a separate
judgment entry of the trial court denying Pratt's Civ.R. 60(B) motion for relief from
judgment. For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} In 2014, Pratt was the chair of the piano department at the university's
College – Conservatory of Music ("CCM"). The piano department was searching for two
new faculty members to replace two retiring faculty members.                     The retiring faculty
members were a married couple. Michael Chertock, chair of the keyboard division and
Nos. 17AP-729 and 17AP-739                                                                   2


Pratt's direct supervisor, was in charge of the faculty search committee responsible for
reviewing applications and discussing which candidates should be invited to campus. The
search committee consisted of Chertock, Pratt, James Tocco, Sandra Rivers, and Jonathan
Kregor. Another faculty member of the piano department, Soyeon Kate Lee, had recused
herself from the search committee because her husband, Ran Dank, was applying for the
open position.
       {¶ 3} One of the candidates who applied for the open position, Ning An, was a then-
enrolled student of Pratt's at the university. Peter Landgren, the former dean of the
university's CCM, did not know An was a student of Pratt's at the time An applied for the
position. Both Lee's husband and Pratt's student were selected as finalists for the position
and were invited to the university for interviews in February 2015.
       {¶ 4} During the search for candidates, Pratt expressed his opposition to having
another married couple on the faculty because of his concern that a married couple could
create a voting bloc. In the midst of the performances of the finalists, Pratt reported to
Landgren his opinion that Lee's interaction with one of the finalists was inappropriate due
to her presumed preference for her husband's candidacy. In response, Lee informed
Landgren she felt she was being singled out unfairly for having a bias in favor of her
husband while Pratt was advocating for a current student.
       {¶ 5} Upon learning An was a current student of Pratt's, Landgren became
concerned about the fairness of the faculty search and Pratt's role on the search committee.
Landgren consulted the Office of Equal Opportunity and Access ("OEO"), which advised
him it would be a conflict of interest for Pratt to serve on the search committee.
Additionally, Landgren consulted the Provost's office which also advised that the situation
created a conflict of interest. Both because of these outside opinions and because of his
own concerns, Landgren decided to declare the search failed.
       {¶ 6} Once Landgren deemed the search failed, Lee emailed the other piano
department faculty that if her husband were to again apply for an open position on the
faculty, she would not participate in the search. In an email, Lee asked that Pratt also recuse
himself from the search should his current student also reapply. Faculty members were
copying Landgren on various emails related to these disagreements. On March 10, 2015,
Chertock responded to one of these emails asking the faculty to give Landgren "some peace"
Nos. 17AP-729 and 17AP-739                                                                     3


on the issue of the faculty search. (Ex. A, Chertock Aff., attached to Aug. 7, 2017 Def.'s Mot.
for Summ. Jgmt.)
       {¶ 7} In response to Chertock's email, Landgren then composed an email the same
day to all the faculty members copied on the prior email stating, in pertinent part:
              In speaking with OEO and the Provost's Office, there is no need
              to discuss "presumed preferences." There is nothing presumed
              when a current student of a member of a search committee is
              in the finals with their teacher on the search committee. This
              is a conflict of interest, plain and simple. Any individual given
              such a conflict should not have been on the search committee,
              or at the very least, they should have recused themselves in the
              voting for this candidate. You, [Pratt], chose not to do so, and
              your asking me today why that was not part of the training is
              defensive to what I suspect you knew you should have done all
              along.

(Emphasis sic.) (Ex. A, Landgren Aff., attached to Def.'s Mot. for Summ. Jgmt.)
       {¶ 8} On March 9, 2016, Pratt filed a complaint alleging false light invasion of
privacy and defamation against the university. Pratt additionally sought an immunity
determination relative to the actions of Landgren. The allegations contained in the
complaint stem from Landgren's March 10, 2015 email to Pratt and other faculty members
of the piano department regarding Pratt's actions during the search for a new piano
department faculty member. The university filed an answer denying any liability.
       {¶ 9} On August 7, 2017, the university filed a motion for summary judgment on
Pratt's claims for defamation and false light invasion of privacy, as well as on the issue of
Landgren's immunity. Pratt filed a memorandum in opposition to the university's motion
for summary judgment on August 25, 2017 in which he abandoned his false light invasion
of privacy claim but argued there remained genuine issues of material fact on his claim for
defamation. The university filed a reply on September 1, 2017.
       {¶ 10} In a September 8, 2017 decision, the trial court granted the university's
motion for summary judgment. In so ruling, the trial court noted that while Pratt had cited
to deposition testimony of various witnesses, Pratt failed to file those deposition transcripts
with the trial court. Despite Pratt's failure to file the deposition transcripts, the trial court
found that "the facts are largely undisputed and/or any dispute is immaterial and
overwhelmingly merit summary judgment in [the university's] favor." (Sept. 8, 2017
Nos. 17AP-729 and 17AP-739                                                                  4


Decision at 2.) In concluding the university was entitled to summary judgment on the
defamation claim, the trial court determined (1) the contents of the email are true; (2) the
email expressed Landgren's own expectations, beliefs, and opinions; and (3) qualified
privilege protects Landgren's email. The trial court further determined Landgren was
entitled to immunity pursuant to R.C. 2743.02(F). That same day, the trial court issued a
judgment entry rendering judgment in favor of the university.
       {¶ 11} Subsequently, on September 26, 2017, Pratt filed a motion for relief from
judgment. In his motion, Pratt stated he "does not seek to set aside the court's ruling on
summary judgment in favor of" the university, but instead sought "relief from the final
judgment for the limited purpose for permitting [Pratt] to file the deposition transcripts
nunc pro tunc so that the record will contain all of the evidence adduced in support of his
opposition to the motion for summary judgment should this matter proceed to an appellate
level." (Mot. for Relief from Jgmt. at 2.) On October 6, 2017, the trial court issued an entry
denying Pratt's motion for relief from judgment.
       {¶ 12} Pratt filed two separate notices of appeal: one appealing from the trial court's
granting of the university's motion for summary judgment, and one appealing from the trial
court's denial of Pratt's motion for relief from judgment. We sua sponte consolidated
Pratt's appeals.
II. Assignments of Error
       {¶ 13} Pratt assigns the following errors for our review:
              [1.] The trial court erred and abused its discretion in denying
              Appellant's motion for relief from judgment pursuant to Civ.R.
              60(B).

              [2.] The trial court erred as a matter of law in granting
              summary judgment in favor of [the university].

For ease of discussion, we address Pratt's assignments of error out of order.
III. Second Assignment of Error – Motion for Summary Judgment
       {¶ 14} In his second assignment of error, Pratt argues the trial court erred in
granting summary judgment to the university on his defamation claim. Pratt does not
appeal the trial court's immunity determination regarding Landgren.
Nos. 17AP-729 and 17AP-739                                                                   5


       {¶ 15} An appellate court reviews summary judgment under a de novo standard.
Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio
Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is appropriate
only when the moving party demonstrates (1) no genuine issue of material fact exists,
(2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds
could come to but one conclusion and that conclusion is adverse to the party against whom
the motion for summary judgment is made, that party being entitled to have the evidence
most strongly construed in its favor. Civ.R. 56(C); State ex rel. Grady v. State Emp.
Relations Bd., 78 Ohio St.3d 181, 183 (1997).
       {¶ 16} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280,
293 (1996). However, the moving party cannot discharge its initial burden under this rule
with a conclusory assertion that the nonmoving party has no evidence to prove its case; the
moving party must specifically point to evidence of the type listed in Civ.R. 56(C)
affirmatively demonstrating that the nonmoving party has no evidence to support the
nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the
moving party discharges its initial burden, summary judgment is appropriate if the
nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with
specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 430;
Civ.R. 56(E).
       {¶ 17} To succeed on a claim of defamation, a plaintiff must demonstrate " '(1) that
a false statement was made, (2) that the statement was defamatory, (3) that the statement
was published, (4) that the plaintiff suffered injury as a proximate result of the publication,
and (5) that the defendant acted with the required degree of fault in publishing the
statement.' " Rarden v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-225, 2012-Ohio-
5667, ¶ 27, quoting Pollock v. Rashid, 117 Ohio App.3d 361, 368 (1st Dist.1996).
       {¶ 18} One of the reasons the trial court set forth that Pratt's defamation claim must
fail is that Landgren's email was protected by qualified privilege. As both this court and the
Supreme Court of Ohio have recognized, qualified privilege is a defense to a defamation
claim. DeGarmo v. Worthington City Schools Bd. of Edn., 10th Dist. No. 12AP-961, 2013-
Nos. 17AP-729 and 17AP-739                                                                 6


Ohio-2518, ¶ 18, citing Hahn v. Kotten, 43 Ohio St.2d 237, 243 (1975). In the context of
employer-employee communication, " 'a communication made in good faith on a matter of
common interest between an employer and an employee, or between two employees
concerning a third employee, is protected by qualified privilege.' " Crase v. Shasta
Beverages, Inc., 10th Dist. No. 11AP-519, 2012-Ohio-326, ¶ 47, quoting Hatton v. Interim
Health Care of Columbus, Inc., 10th Dist. No. 06AP-828, 2007-Ohio-1418, ¶ 14. This rule
emanates from a Supreme Court of Ohio case affording "a qualified privilege to allegedly
defamatory statements that corporate officers made to other officers and supervisory
personnel about an employee's on-the-job activities." Crase at ¶ 47, citing Evely v. Carlon
Co., 4 Ohio St.3d 163, 165-66 (1983).
       {¶ 19} Further, "[o]nce the defense of qualified privilege attaches, a plaintiff can
only defeat the privilege with clear and convincing evidence that the defendant made the
statements at issue with actual malice." Crase at ¶ 48, citing A & B-Abell Elevator Co., Inc.
v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 11 (1995). A
defendant acts with "actual malice" when he or she makes statements with the knowledge
that those statements are false or if he or she recklessly disregards the truth or falsity of
those statements. Crase at ¶ 48, citing Hatton at ¶ 15, citing A & B-Abell Elevator Co., Inc.
at 11-12.
       {¶ 20} As the trial court noted in its decision, there is no dispute that Landgren's
March 10, 2015 email related to an ongoing dispute among the piano department faculty
and the email addressed only work-related subjects of which the recipients were already
aware and were already discussing. The conduct of the search committee and faculty
members are matters of common interest to the faculty members to whom Landgren sent
the email. Thus, we agree with the trial court's conclusion that Landgren's email to other
faculty members regarding a subject already under discussion and pertaining to matters of
common interest and ongoing business among those faculty members is entitled to a
qualified privilege. See Crase at ¶ 50 (holding statements fell under a qualified privilege
because "the challenged communications were made between employees having a common
interest with regard to appellant's work performance"); Evely at 165 (statements "made
concerning the activities of the appellant arising out of his employment status with the
Nos. 17AP-729 and 17AP-739                                                                   7


company" and not "directed to the appellant as an individual separate and apart from his
employment" are afforded a qualified privilege).
       {¶ 21} Once the university asserted the defense of qualified privilege in its motion
for summary judgment, the burden fell to Pratt to show there remained a genuine issue of
material fact of whether the university acted with actual malice. Crase at ¶ 48. However,
beyond arguing qualified privilege should not attach in this case, Pratt does not point to any
evidence of actual malice. There is no evidence that Landgren knowingly mischaracterized
Pratt's actions or his honest judgment of those actions when he discussed the conflict
among the piano department faculty members. For these reasons, we agree with the trial
court that the undisputed facts compel the conclusion that Landgren's email is protected
by the qualified privilege applicable to employer-employee communications.               Thus,
because the trial court did not err in granting the university's motion for summary
judgment on Pratt's defamation claim, we overrule Pratt's second assignment of error.
IV. First Assignment of Error – Motion for Relief from Judgment
       {¶ 22} In his first assignment of error, Pratt argues the trial court erred in denying
his motion for relief from judgment.
       {¶ 23} To prevail on a Civ.R. 60(B) motion for relief from judgment, the movant
must satisfy a three-prong test. The movant must demonstrate (1) it has a meritorious
defense or claim to present if relief is granted; (2) it is entitled to relief under one of the
grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a
reasonable time and, when relying on a ground for relief set forth in Civ.R. 60(B)(1), (2), or
(3), it filed the motion not more than one year after the judgment, order, or proceeding was
entered or taken. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146
(1976), paragraph two of the syllabus. There will be no relief if the movant fails to satisfy
any one of the prongs of the GTE test. Strack v. Pelton, 70 Ohio St.3d 172, 174 (1994).
       {¶ 24} An appellate court reviews a trial court's denial of a Civ.R. 60(B) motion for
an abuse of discretion. Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, ¶ 7;
Oberkonz v. Gosha, 10th Dist. No. 02AP-237, 2002-Ohio-5572, ¶ 12. An abuse of discretion
is more than merely an error of judgment; it connotes a decision that is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Nos. 17AP-729 and 17AP-739                                                                     8


         {¶ 25} As the trial court noted, although Pratt captioned his motion as a "motion for
relief from judgment" pursuant to Civ.R. 60(B), Pratt specifically stated that he "does not
seek to set aside the court's ruling on summary judgment." (Mot. for Relief from Jgmt. at
2.) Instead, the sole relief Pratt sought was the ability to supplement the record with the
deposition transcripts he cited in his response to the university's motion for summary
judgment but that he failed to timely file with the trial court. There is nothing in the plain
language of Civ.R. 60(B) that affords such relief.
         {¶ 26} Moreover, as the trial court noted, Pratt's stated basis for the requested relief
is to enable this court, on appeal, to review all the pertinent facts when considering the
university's motion for summary judgment. However, "[a]ppellate review is limited to the
record as it existed at the time the trial court rendered judgment." Fifth Third Mtge. Co. v.
Salahuddin, 10th Dist. No. 13AP-945, 2014-Ohio-3304, ¶ 13. Thus, "a reviewing court
cannot consider evidence that a party added to the trial court record after that court's
judgment and then decide an appeal from the judgment based on new evidence." Id., citing
Paasewe v. Wendy Thomas 5 Ltd., 10th Dist. No. 09AP-510, 2009-Ohio-6852, ¶ 15.
         {¶ 27} Thus, the trial court did not abuse its discretion in denying Pratt's Civ.R.
60(B) motion for the stated purpose of creating a different record for the court of appeals
than what was before the trial court. Accordingly, we overrule Pratt's first assignment of
error.
V. Disposition
         {¶ 28} Based on the foregoing reasons, the trial court did not err in granting the
university's motion for summary judgment and did not abuse its discretion in denying
Pratt's Civ.R. 60(B) motion for relief from judgment.           Having overruled Pratt's two
assignments of error, we affirm the judgments of the Court of Claims of Ohio.
                                                                          Judgments affirmed.

                            BROWN, P.J., and SADLER, J., concur.
