[Cite as Clarkwestern Dietrich Bldg. Sys. L.L.C. v. Certified Steel Stud Assn., Inc., 2017-Ohio-2713.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




CLARKWESTERN DIETRICH BUILDING                            :
SYSTEMS, LLC d.b.a. CLARKDIETRICH,
                                                          :           CASE NO. CA2016-06-113
        Plaintiff-Appellee,
                                                          :                    OPINION
    - vs -                                                                      5/8/2017
                                                          :
CERTIFIED STEEL STUD ASSOCIATION,
INC., et al,                      :

        Defendants-Appellants.                            :



          CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. CV2013-10-2089



Frost Brown Todd LLC, Matthew C. Blickensderfer, Stephen R. Hernick, 3300 Great
American Tower, 301 East Fourth Street, Cincinnati, Ohio 45202 and Cohen & Grigsby, P.C.,
Anthony Cillo, Barbara Scheib, Fridrikh V. Shrayber, 625 Liberty Avenue, Pittsburgh, PA
15222-3152, for plaintiff-appellee

Faruki Ireland & Cox PLL, D. Jeffrey Ireland, Stephen A. Weigand, Jason W. Palmer, 201
East Fifth Street, Suite 1420, Cincinnati, Ohio 45202, for defendant-appellant, Certified Steel
Stud Association, Inc.



        PIPER, J.

        {¶ 1} Defendant-appellant, Certified Steel Stud Association, Inc., ("the Association")

appeals a decision of the Butler County Court of Common Pleas denying its motion for

summary judgment and denying its request for judgment notwithstanding a verdict, which

was rendered in favor of plaintiff-appellee, Clarkwestern Dietrich Building Systems LLC, DBA
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ClarkDietrich.

       {¶ 2} The Association was formed in 2012 by manufacturers in the business of

nonstructural steel framing. These products provide framing for nonstructural walls, those

that do not support the weight of the building, and must comply with the standards set forth

by the International Building Code ("IBC"). One such compliance standard requires builders

to use noncombustible products in multi-story applications. To make the steel products

noncombustible and to prevent corrosion, manufacturers use a method of coating the steel in

a zinc-based coating called G40.

       {¶ 3} ClarkDietrich, which is headquartered in West Chester, Ohio, is in the business

of selling steel framing products, accessories, and related services, and also manufactures

coatings. ClarkDietrich began producing an "equivalent" coating to G40, called EQ or

G40EQ. ClarkDietrich's development and use of G40EQ allowed it to manufacture its

products at a lower cost, and some competitors reduced prices on the traditional G40-coated

products to compete with ClarkDietrich's new G40EQ product. The G40EQ coating is not

listed in the IBC's table of coatings.

       {¶ 4} The Association released a publication entitled "CSSA Opinion: EQ Coatings

Are Not Recognized By The Code," which included a byline of "Substituting G40e Presents

Potential Liability for Contractors On Jobs."1 Within this publication, the Association made

statements that (1) ClarkDietrich's G40EQ product did not comply with IBC standards, (2) the

only acceptable coatings are those listed in the IBC tables, (3) ClarkDietrich is in the habit of

substituting its products on projects that specify use of G40 coatings without informing the

customer, (4) most project specifications require the use of G40 coatings, (5) contractors who

use G40EQ are unknowingly subjecting themselves to liability, (6) the G40EQ coating is

"paint," (7) the G40EQ-coated products are inferior to G40-coated products, (8) testing of


1. The Association referred to G40EQ products as G40e.
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G40EQ products is less rigorous than for G40 products, and (9) G40EQ products cannot

withstand intensive corrosive environments, such as buildings along the coastline.

       {¶ 5} This publication was disseminated by the Association to 9,560 customers and

others involved in the nonstructural steel framing industry.         After the publication was

distributed, ClarkDietrich lost projects and millions of dollars in revenue.

       {¶ 6} ClarkDietrich sued the Association, as well as later-dismissed defendants, for

violation of the Ohio Deceptive Trade Practices Act and unfair competition, defamation,

disparagement, and civil conspiracy. The parties moved for summary judgment, and the

Association argued that its publication was an opinion protected under the First Amendment,

rather than actionable factual statements. The trial court denied the Association's motion for

summary judgment on most issues, except for a limited judgment that the Association's

statement that ClarkDietrich's products were "inferior" was an unactionable opinion.

       {¶ 7} The trial court also granted summary judgment in favor the Association in a

separate action filed by ClarkDietrich in which it alleged that the Association engaged in

activities that violated the Valentine Act, Ohio's anti-trust statute. ClarkDietrich appealed that

decision to this court, and we affirmed. Clarkwestern Dietrich Bldg. Sys., LLC v. Certified

Steel Stud Assn., 12th Dist. Butler No. CA2016-05-098, 2017-Ohio-1091.

       {¶ 8} The remaining matters proceeded to an extensive trial that spanned nine

weeks, after which the jury found in favor of ClarkDietrich, and awarded it $49 million, $43

million of which was apportioned to the Association. The trial court entered judgment based

on the jury's verdict, and the Association filed a motion for judgment notwithstanding the

verdict, or in the alternative, a motion for a new trial. The trial court denied the motion. The

Association now appeals the trial court's decisions, raising the following assignments of error.

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} THE COURT ERRED IN DENYING CSSA'S MOTION FOR SUMMARY

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JUDGMENT.

       {¶ 11} The Association argues in its first assignment of error that the trial court erred

by not granting its motion for summary judgment because the publication contained opinion

statements, rather than fact.

       {¶ 12} Generally, any error in denying a summary judgment motion is rendered moot

or harmless if the motion is denied due to the existence of genuine issues of material fact

and a subsequent trial results in a verdict in favor of the nonmoving party. South v.

Browning, 12th Dist. Warren No. CA2012-09-088, 2013-Ohio-1491, ¶ 27. However, an error

in the denial of a summary judgment motion that presents a purely legal question is not

rendered harmless by a subsequent trial on the merits. Capella III LLC v. Wilcox, 190 Ohio

App.3d 133, 2010-Ohio-4746 (10th Dist.).

       {¶ 13} When the alleged error in the denial of summary judgment is based purely on

a question of law that must be answered without regard to issues of fact, the denial of

summary judgment is reviewable. Promotion Co., Inc./Special Events Div. v. Sweeney, 150

Ohio App.3d 471, 2002-Ohio-6711, ¶ 15 (7th Dist.). Whether a statement is opinion or fact is

a matter of law. Coyne v. Stapleton, 12th Dist. Clermont No. CA2006-10-080, 2007-Ohio-

6170. As such, we will address the Association's assignment of error in which it claims that

the trial court erred by determining that the publication contained factual statements, rather

than opinion.

       {¶ 14} This court's review of a trial court's ruling on a summary judgment motion is de

novo. Lindsay P. v. Towne Properties Asset Mgt. Co., 12th Dist. Butler No. CA2012-11-215,

2013-Ohio-4124, ¶ 16. Civ.R.56 sets forth the summary judgment standard and requires that

there be no genuine issues of material fact to be litigated, the moving party is entitled to

judgment as a matter of law, and reasonable minds can come to only one conclusion which

is adverse to the nonmoving party. Slowey v. Midland Acres, Inc., 12th Dist. Fayette No.

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CA2007-08-030, 2008-Ohio-3077, ¶ 8. The moving party has the burden of demonstrating

that there is no genuine issue of material fact. Harless v. Willis Day Warehousing Co., 54

Ohio St.2d 64 (1978).

       {¶ 15} The nonmoving party "may not rest on the mere allegations of his pleading, but

his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts

showing the existence of a genuine triable issue." Mootispaw v. Eckstein, 76 Ohio St.3d 383,

385 (1996). A dispute of fact can be considered "material" if it affects the outcome of the

litigation. Myers v. Jamar Enterprises, 12th Dist. Clermont No. CA2001-06-056, 2001 Ohio

App. LEXIS 5477, *2 (Dec. 10, 2001). A dispute of fact can be considered "genuine" if it is

supported by substantial evidence that exceeds the allegations in the complaint. Id.

       {¶ 16} To determine whether a statement is fact or opinion, Ohio courts employ a

totality of the circumstances test. Condit v. Clermont Cty. Review, 110 Ohio App.3d 755

(12th Dist.1996). Courts should consider "the specific language used, whether the statement

is verifiable, the general context of the statement, and finally, the broader context in which

the statement appeared." Vail v. The Plain Dealer Publishing Co., 72 Ohio St.3d 279, 282

(1995). This is not a "bright-line" test, rather the standard is fluid and the facts of each case

must be analyzed in the context of the general test. Condit. A key consideration is whether

the language "lacks precise meaning and would be understood by the ordinary reader for just

what it is – one person's attempt to persuade public opinion." Vail at 282-83. Language that

is loosely definable or has variously interpretable meanings will not ordinarily support an

action for defamation. Wampler v. Higgins, 93 Ohio St. 3d 111, 129 (2001). The integral

question is whether the alleged defamatory statement is sufficiently factual to be susceptible

of being proved true or false. Bross v. Smith, 80 Ohio App.3d 246 (12th Dist.1992).

       {¶ 17} Commentary that is apparently based on actual facts and points out

implications, rather than making a "personal prediction or hyperbolic characterization," may

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leave the impression in the mind of a reasonable person that such statements speak to the

truth of the matter, not merely the author's opinion. Church of Scientology Internatl. v. Eli

Lilly & Co., 778 F.Supp. 661, 668 (S.D.N.Y.1991). However, "simply couching a statement –

'Jones is a liar' – in terms of opinion – 'In my opinion Jones is a liar' – does not dispel the

factual implications contained in the statement." Milkovich v. Lorain Journal Co., 497 U.S. 1,

110 S.Ct. 2695 (1990), paragraph one of the syllabus.

       {¶ 18} After reviewing the record, we find that the trial court did not err in finding that

the statements made by the Association were actionable as fact, rather than protected

opinions. The statements regarding whether the G40EQ products complied with IBC

standards, whether the only acceptable coatings are those listed in the IBC tables, whether

ClarkDietrich is in the habit of substituting its products on projects that specify use of G40

coatings without informing the customer, whether most project specifications require the use

of G40 coatings, whether contractors who use G40EQ are unknowingly subjecting

themselves to liability, whether G40EQ coating is "paint", whether the testing of G40EQ

products is less rigorous than for G40 products, and whether G40EQ products cannot

withstand intensive corrosive environments are all verifiable and can be proved as either true

or false.

       {¶ 19} In addition to being verifiable, we also find that these statements are precise

and do not lack meaning in a way that would cause the reader to understand the statements

as mere opinions. The specific language utilized in the Association's publication does not

have interpretable meanings, as the message conveyed was that G40EQ products were not

compliant with IBC requirements, were not held to the same standard as G40 products, and

that ClarkDietrich was surreptitiously substituting products without customer knowledge when

such jobs specifically called for the use of G40 materials. A reasonable reader cannot

interpret these, and the other statements made in the publication, to mean anything other

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than establishing the perils of using G40EQ products as compared to using G40 products.

       {¶ 20} The Association claims that the statements in its publication are opinion, given

that the IBC requirements are open to interpretation.        However, and even if the IBC

requirements for coating specifications could be interpreted in different ways by the parties,

the statements could still be verified as either true or not-true based on either or both

interpretations of the IBC requirements. The way in which the Association worded the

publication did not predicate the statements contained therein on any one interpretation of

the code, but rather, publicized its statements as being true based on any reading of the IBC

requirements. As such, the publication's readers would understand that the Association was

presenting facts as a clear implication and warning regarding the perilous use of G40EQ,

rather than trying to persuade customers to believe in an interpretation of the IBC code

advocated by the Association.

       {¶ 21} The publication's context does not purport to express the Association's

opinion, despite the title of the piece as "CSSA Opinion."         Instead, the Association's

statements within the context of the publication demonstrate that such statements are given

as fact. The entire publication is full of proof statements, such as "G40e is a misnomer;

because equivalent metallic coatings are listed in Table 1 of ASTM A1003," and that

"equivalency to G40 has only been defined by the manufacturers promoting their own G40e

coatings." As with the other verifiable statements within the publication, these statements

were utilized to establish in context of the entire publication that G40EQ products are

ineffectual.

       {¶ 22} However, the statements used by the Association did not require the reader to

understand or utilize any one specific interpretation of the IBC. Instead, the statements were

not offered by the Association in support of using its preferred interpretation of the IBC where

the statements were meant to establish in fact that the G40EQ products are unacceptable

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substitutes for G40 products regardless of the interpretation used.

        {¶ 23} While one, or possibly two, of the statements made by the Association are

specific to whether G40EQ complies with the IBC standards, the rest of the statements did

not hinge upon compliance. For example, the other statements included express assertions

that Clark Dietrich engaged in improper or dishonest conduct, such as switching the products

without informing customers, or that customers were exposing themselves to liability through

use of the product. As such, and based on the totality of the circumstances, the possibility of

the IBC regulations being open to interpretation would not defeat the finding that the

Association's publication was predicated on fact, rather than opinion.

        {¶ 24} After reviewing the record, we find that (1) the specific language used within

the Association's publication indicates the use of fact rather than opinion. The statements

are (2) verifiable given that they are true or not, regardless of the interpretation of the IBC

used regarding compliance. The (3) general context of the statements, as stated within the

Association's publication to customers of nonstructural steel framing products, indicates the

use of factual statements being made by the Association to customers. Finally, the (4)

broader context in which the statement appeared, the Association's warning to customers

specific to the use of G40EQ products, also indicates the use of factual statements.2 The

totality of these circumstances, therefore, indicates that the publication included factual

statements rather than protected opinion. As such, the trial court did not err in denying the

Association's motion for summary judgment, and its first assignment of error is overruled.

        {¶ 25} Assignment of Error No. 2:

        {¶ 26} THE COURT ERRED IN DENYING CSSA'S MOTION FOR A JUDGMENT


2. The Association also suggests that the trial court erred by not awarding summary judgment because the
meaning of IBC code requirements is a matter of law. However, generally speaking, once language in a writing
is deemed ambiguous by the court, the matter of determining the meaning or interpretation is an issue of fact.
Amstutz v. Prudential Ins. Co., 136 Ohio St. 404, 408 (1940). See also J & M Turner v. Applied Bolting Tech.
Prods., E.D.Pa. Nos. 95-2179 and 96-5819, 1997 U.S. Dist. LEXIS 1835, *12 (Feb. 18, 1997) ("as a general rule,
the factfinder interprets a writing's ambiguous provisions").
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NOTWITHSTANDING THE VERDICT AND/OR FOR A NEW TRIAL.

        {¶ 27} The Association argues in its second assignment of error that the trial court

should have granted its motion for a judgment notwithstanding the verdict or its motion for a

new trial.3

        {¶ 28} We review a trial court's decision on a motion for directed verdict or judgment

notwithstanding the verdict de novo. Briggs v. Franklin Pre-Release Ctr., 12th Dist. Madison

No. CA2013-10-035, 2014-Ohio-2477. A favorable ruling on either motion is not easily

obtained. Phipps v. Internatl. Paper Co., 12th Dist. Clinton No. CA2013-02-003, 2013-Ohio-

3994, ¶ 10. The standard for granting a motion for judgment notwithstanding the verdict is

the same as that for granting a motion for directed verdict. Choate v. Tranet, Inc., 12th Dist.

Warren No. CA2005-09-105, 2006-Ohio-4565, ¶ 48. That is, when considering either motion,

the evidence adduced at trial and the facts established by admissions in the pleadings and in

the record must be construed most strongly in favor of the party against whom the motion is

made. Phipps at ¶ 11. If the court finds that reasonable minds could not differ as to any

determinative issue, then the court must sustain the motion. Id. If, on the other hand, there

is substantial competent evidence to support the nonmoving party, upon which reasonable

minds might reach different conclusions, the motion must be denied. Id.

        {¶ 29} The Association first claims that the trial court should have granted its motion

for a judgment notwithstanding the verdict or a new trial because the court erred in denying it

the ability to provide expert testimony regarding whether G40EQ products complied with IBC

standards by virtue of the trial court's rulings on motions in limine before the trial started.

        {¶ 30} It is incumbent upon a party who has been temporarily restricted from




3. The Association's first reason the trial court erred in not granting JNOV or a new trial is the same as those
arguments raised in the first assignment of error specific to the trial court's ruling that the statements were fact.
For the reasons stated in the first assignment of error, the trial court did not err in denying the motion for JNOV
and a new trial.
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introducing evidence because of a motion in limine to seek the introduction of that evidence

by proffer or otherwise at trial to enable the trial court to make a final determination as to its

admissibility and to preserve any objection on the record for purposes of appeal. Garrett v.

Sandusky, 68 Ohio St.3d 139, 141 (1994). Failing to preserve the claimed error by objection

or proffer negates an appellate court's duty to review the issue. Barker v. Glen Meadows

Nursing Home, 12th Dist. Butler No. CA2008-06-145, 2009-Ohio-2626.

       {¶ 31} The Association did not proffer the expert testimony it hoped to offer, nor did it

object at the time the expert's testimony would have been given if not for the motion in limine.

Thus, the Association failed to properly preserve for review the evidentiary issues raised in its

motions in limine and has waived its right to argue those issues on appeal.

       {¶ 32} The Association denies it has failed to preserve the issue because it felt its

objection via the motions in limine were "clear" and that the law does not require it to "belabor

the point further." Even if we were to determine that the Association properly lodged an

objection to not being able to offer expert testimony, we find that the trial court did not abuse

its discretion when determining the proper testimony of the expert witnesses.

       {¶ 33} According to Evid.R. 704, "testimony in the form of an opinion or inference

otherwise admissible is not objectionable solely because it embraces an ultimate issue to be

decided by the trier of fact." Ultimate-issue testimony is admissible when the scientific facts

are beyond the experience, knowledge, or comprehension of the jury. Shepherd v. Midland

Mut. Life Ins. Co., 152 Ohio St. 6 (1949). The admission or exclusion of evidence, including

ultimate-issue testimony, is generally within the sound discretion of the trial court, and a

reviewing court may reverse only upon a showing of an abuse of that discretion. Shoemake

v. Hay, 12th Dist. Clermont No. CA2002-06-048, 2003-Ohio-2782. "The term abuse of

discretion connotes more than an error of law or of judgment; it implies that the court's

attitude is unreasonable, arbitrary or unconscionable." Id. at ¶ 9.

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       {¶ 34} The Association asserts that the trial court should have granted a new trial

because the trial court's ruling barred the Association's expert witness from interpreting the

IBC while allowing ClarkDietrich's expert to offer testimony on the ultimate issue of whether

the G40EQ products complied with IBC specifications. Although some of the statements in

the Association's publication addressed compliance, the majority of others did not. For

example, whether ClarkDietrich surreptitiously replaced G40 products with G40EQ products,

did not involve code interpretation. Nor did the Association's claim that testing for G40EQ

products was less rigorous. Moreover, the parties asked the jury to determine whether the

Association defamed ClarkDietrich though the entire publication, but did not ask the jury to

specifically determine separately whether G40EQ products complied with the IBC

requirements.

       {¶ 35} The record indicates that the parties declined to ask the jury a specific

question regarding compliance as part of rendering its verdict, and there was no such

interrogatory submitted on the subject.      Instead, the interrogatories asked the jury to

determine as a whole whether the Association's publication (1) "contained a false or a

misleading statement of fact in a commercial advertisement or promotion about the nature or

quality of Plaintiff's nonstructural steel framing products," (2) whether the publication was

"false," and (3) whether the Association made a "false and disparaging statement of fact

about Plaintiff's products by publishing" the publication.

       {¶ 36} As such, there is no indication in the record that the jury's decision was

predicated on the lack of expert testimony from the Association that G40EQ products do not

comply with IBC requirements. This is especially true where the record does indicate that the

jury heard evidence and testimony from both parties' fact witnesses regarding compliance

issues.

       {¶ 37} Despite the trial court's ruling that the jury was not to hear expert testimony

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regarding G40EQ's specific compliance with IBC standards, multiple fact witnesses on both

sides testified to IBC standards, how such are created, and whether ClarkDietrich's EQ

products appeared on the tables listed in association with the IBC code. Additionally, other

lay witnesses were permitted to testify for both sides regarding what constituted IBC

compliant coatings.

       {¶ 38} For example, James DesLaurier, the author of the Association's publication,

testified that the only acceptable coatings are those listed on Table 1 – which does not

include EQ products. "When we wrote the article, the only acceptable metallic coatings were

the seven that were included on Table 1 * * *. There are no definitions of what equivalent is *

* * and only a handful of manufacturers were the ones that were promoting these coatings."

       {¶ 39} The jury heard several weeks of testimony regarding the EQ coatings, and had

ample testimony and evidence before it to determine whether such coatings were complaint

with the IBC. While there is no doubt that this issue was an important point at trial, we

reiterate that the jury was not asked to determine whether the EQ coatings were code

compliant, and were never asked via interrogatories which of the statements made within the

publication were determinative of its verdict. As such, there is no indication in the record that

the trial court abused its discretion regarding expert testimony.

       {¶ 40} After reviewing the record, the trial court properly denied the Association's

motion for judgment notwithstanding the verdict and a new trial because there was no error in

the evidentiary decisions made by the trial court. As such, the Association's second

assignment of error is overruled.

       {¶ 41} Judgment affirmed.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




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