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NORMA DESARRO, PLAINTIFF-APPELLANT, VS. MIKE MCVAY,
DEFENDANT-APPELLEE.
CASE NO. 02-CO-42
COURT OF APPEALS OF OHIO, SEVENTH APPELLATE DISTRICT,
COLUMBIANA COUNTY
2003-Ohio-1224; 2003 Ohio App. LEXIS 1195

March 17, 2003, Decided

PRIOR HISTORY:
[**1] CHARACTER OF
PROCEEDINGS: Civil Appeal from Common Pleas
Court. Case No. 01-CV-00617.
DISPOSITION: Trial court's judgment was affirmed.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff, the owner of a
bar, sued defendant, a police chief, for defamation and
negligent infliction of emotional distress. The
Columbiana County Common Pleas Court (Ohio)
awarded summary judgment to the police chief. The
owner appealed the judgment.
OVERVIEW: The owner sought to transfer a liquor
license to another location, with the stated intent of
opening a carryout. At a city council meeting, the police
chief alleged that the owner was attempting to "fudge"
the license with the Ohio Liquor Control Board and that,
once transferred, nothing could be done to stop her from
starting up an actual bar or nightclub at the new location.
The chief also stated that another club owned by the
owner was the "worst bar in town." As to the claim for
defamation, the trial court found even if the statements
were defamatory, the chief, acting in his official capacity,
was entitled to a qualified privilege and that the chief had
not made the comments with actual malice. The appellate

court held that the owner failed to explain how the

statements were defamatory. When the chief made the
statement that the owner might have been trying to
"fudge" the transfer application, he was raising a
legitimate point. As for the comments concerning the
other club, the chief had a legitimate basis for those
statements. The chief explained numerous problems and
calls his department had with the club, including fights
and a drive-by shooting.
OUTCOME: The judgment was affirmed.
LexisNexis(R) Headnotes

Civil Procedure > Summary Judgment > Appellate

Review > Standards of Review
Civil Procedure > Appeals > Standards of Review > De
Novo Review
[HN1] An appellate court reviews a trial court's decision
on a motion for summary judgment de novo.
Civil Procedure > Summary Judgment > Motions for
Summary Judgment > General Overview
Civil Procedure > Summary Judgment > Standards >
Genuine Disputes

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Civil Procedure > Summary Judgment > Standards >

Materiality
[HN2] Summary judgment is properly granted when: (1)
there is no genuine issue as to any material fact; (2) the
moving party is entitled to judgment as a matter of law;
and (3) reasonable minds can come to but one conclusion,
and that conclusion is adverse to the party against whom
the motion for summary judgment is made, Ohio R. Civ.
P. 56(C).
Civil Procedure > Summary Judgment > Burdens of
Production & Proof > Movants
Civil Procedure > Summary Judgment > Burdens of
Production & Proof > Nonmovants
[HN3] A party seeking summary judgment, on the
ground that the nonmoving party cannot prove its case,
bears the initial burden of informing the trial court of the
basis for the motion, and identifying those portions of the
record that demonstrate the absence of a genuine issue of
material fact on the essential elements of the nonmoving
party's claims. The moving party cannot discharge its
initial burden under Ohio R. Civ. P. 56 simply by making
a conclusory assertion that the nonmoving party has no
evidence to prove its case. Rather, the moving party must
be able to specifically point to some evidence of the type
listed in Ohio R. Civ. P. 56(C) which affirmatively
demonstrates that the nonmoving party has no evidence
to support the nonmoving party's claims.
Civil Procedure > Discovery > Methods >
Interrogatories > General Overview
Civil Procedure > Summary Judgment > Supporting
Materials > General Overview
[HN4] The "portions of the record" or evidentiary
materials listed in Ohio R. Civ. P. 56(C) include the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and
written stipulations of fact that have been filed in the
case.
Civil Procedure > Summary Judgment > Standards >
General Overview
[HN5] The court is obligated to view all the evidentiary
material in a light most favorable to the nonmoving party.
Civil Procedure > Summary Judgment > Burdens of
Production & Proof > Movants

Civil Procedure > Summary Judgment > Motions for

Summary Judgment > General Overview
Civil Procedure > Summary Judgment > Standards >
Appropriateness
[HN6] If the moving party fails to satisfy its initial
burden, the motion for summary judgment must be
denied. However, if the moving party has satisfied its
initial burden, the nonmoving party then has a reciprocal
burden outlined in Ohio R. Civ. P. 56(E) to set forth
specific facts showing that there is a genuine issue for
trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the
nonmoving party.
Civil Procedure > Summary Judgment > Standards >
Genuine Disputes
Civil Procedure > Summary Judgment > Standards >
Materiality
[HN7] Summary judgment is appropriate when there is
no genuine issue as to any material fact. A material fact
depends on the substantive law of the claim being
litigated.
Torts > Intentional Torts > Defamation > Elements >
Libel
Torts > Intentional Torts > Defamation > Elements >
Slander
[HN8] Defamation is a false publication that injures a
person's reputation, exposes the person to public hatred,
contempt, ridicule, shame or disgrace or affects the
person adversely in his trade or business. Defamation can
be in the form of either slander or libel. Slander generally
refers to spoken defamatory words, while libel refers to
written or printed defamatory words.
Torts > Intentional Torts > Defamation > Elements >
Libel
Torts > Intentional Torts > Defamation > Elements >
Slander
[HN9] The essential elements of a defamation action,
whether slander or libel, are that the defendant made a
false statement, that the false statement was defamatory,
that the false defamatory statement was published, that
the plaintiff was injured and that the defendant acted with
the required degree of fault. In an action for defamation,
the plaintiff's prima facie case is made when he has
established a publication to a third person for which
defendant is responsible, the recipient's understanding of

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the defamatory meaning, and its actionable character.

Torts > Intentional Torts > Defamation > Defamation
Per Se
[HN10] Defamation is further categorized as defamation
per se and defamation per quod. Defamation per se
occurs when material is defamatory on its face, i.e., by
the very meaning of the words used. Defamation per
quod occurs when material is defamatory through
interpretation or innuendo. Written matter is libelous per
se if, on its face, it reflects upon a person's character in a
manner that will cause him to be ridiculed, hated, or held
in contempt, or in a manner that will injure him in his
trade or profession. When a writing is not ambiguous, the
question of whether it is libelous per se is for the court to
decide.
Torts > Intentional Torts > Defamation > Defenses >
Fair Comment & Opinion
[HN11] Under Ohio law, for a statement to be
defamatory it must be a statement of fact and not of
opinion.
Constitutional Law > Bill of Rights > Fundamental
Freedoms > Freedom of Speech > Scope of Freedom
[HN12] See Ohio Const. art. I, 11.
Torts > Intentional Torts > Defamation > Defenses >
Fair Comment & Opinion
Torts > Intentional Torts > Defamation > Procedure
[HN13] Whether allegedly defamatory language is
opinion or fact is a question of law for the court to
decide. A totality of the circumstances test is used to
determine whether a statement is fact or opinion. This is a
fluid test and calls for the court to consider the specific
language used, whether the statement is verifiable, the
general context of the statement, and the broader context
in which the statement appeared.
COUNSEL: For Plaintiff-Appellant: Attorney Jeffrey
Jakmides, Alliance, Ohio.
For Defendant-Appellee: Attorney Mark W. Baserman,
Millersburg, Ohio.
JUDGES: Hon. Gene Donofrio, Hon. Cheryl L. Waite,
Hon. Mary DeGenaro. Waite and DeGenaro, JJ., concur.

OPINION BY: Gene Donofrio

OPINION
DONOFRIO, J.
[*P1] Plaintiff-appellant, Norma DeSarro, appeals a
decision of the Columbiana County Common Pleas Court
awarding summary judgment to defendant-appellee, Mike
McVay, on her claims for defamation and negligent
infliction of emotional distress.
[*P2] Appellant acquired ownership of a "D5"
liquor permit which was assigned to a bar called the
Green Mill located on Dresden Avenue in East Liverpool,
Ohio. In early 2001, appellant began the process of
seeking a transfer of the license to another location at the
intersection of Pennsylvania Avenue and Parkway in East
Liverpool, with the stated intent of opening a carryout. At
the time, appellant also owned a nightclub in East
Liverpool called the University Club, for which her
daughter owned the liquor license.
[*P3] At a city council meeting on [**2] April 19,
2001, appellee, the city police chief, requested that the
council formally object to the transfer. Appellee
questioned why appellant wanted to transfer a "D5"
license, which is for a nightclub operation, to a location
to be operated as a carryout, when there exists a license
specifically for carryouts. As reported in a local
newspaper the next day, appellee alleged that appellant
was attempting to "'fudge' the license with the Ohio
Liquor Control Board and that, once transferred, nothing
could be done to stop her from starting up an actual bar or
nightclub at that location." (April 20, 2001 Morning
Journal, p. 20.) The article also quoted appellee as stating
that the University Club was the "worst bar in town."
Appellee referred to problems his department had had
with the University Club, including fights, public
intoxication, public indecency, and a drive-by shooting.
[*P4] On August 30, 2001, appellant filed a
complaint setting forth causes of action for defamation
and negligent infliction of emotional distress. Appellant
took issue with the comment attributed to appellee that
she would "fudge" the application for the transfer of the
license. Following discovery,
[**3]
including
depositions from both appellant and appellee, appellee
filed a motion for summary judgment on June 5, 2002.
Appellant filed a response on July 3, 2002. On July 11,
2002, the trial court granted appellee's motion. The court

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found that appellant could not sustain her claim of

negligent infliction of emotional distress because she had
not been caused nor in imminent fear of physical injury.
As for her claim for defamation, the court found even if
the statements were defamatory, appellee, acting in his
official capacity as police chief, was entitled to a
qualified privilege and that appellee had not made the
comments with actual malice. This appeal followed.
[*P5] Appellant's sole assignment of error states:
[*P6] "The circumstances in which a jury must
decide issues of facts."
[*P7] Appellant addresses only her claim for
defamation 1 and makes the general assertion that "if the
effect of the meaning of the statement is unclear, a jury
must decide the issue."
1 Appellant has not assigned error to the trial
court's resolution and dismissal of her claims for
negligent infliction of emotional distress. As such,
this opinion will not address the trial court's
dismissal and resolution of that claim.

party has no evidence to support the nonmoving party's

claims. * * *" (Emphasis sic.) Dresher v. Burt (1996), 75
Ohio St.3d 280, 293, 1996 Ohio 107, 662 N.E.2d 264.
[*P10] [HN4] The "portions of the record" or
evidentiary materials listed in Civ.R. 56(C) include the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and
written stipulations of fact that have been filed in the
case. [HN5] The court is obligated to view all the
evidentiary material in a light most favorable to the
nonmoving party. Temple v. Wean United, Inc.(1977), 50
Ohio St.2d 317, 364 N.E.2d 267, 4 O.O.3d 466.
[*P11] [HN6] "If the moving party fails to satisfy
its initial burden, the motion for summary judgment must
be denied. However, if the moving party has satisfied its
initial burden, the nonmoving party then has a reciprocal
burden outlined in Civ.R. 56(E) to set forth specific facts
showing that there is a genuine issue for trial and, if the
nonmovant does not so respond, [**6] summary
judgment, if appropriate, shall be entered against the
nonmoving party." Dresher, 75 Ohio St.3d at 293, 662
N.E.2d 264.

[*P8] [**4] [HN1] An appellate court reviews a

trial court's decision on a motion for summary judgment
de novo. Grafton v. Ohio Edison Co.,77 Ohio St. 3d 102,
105, 1996 Ohio 336, 671 N.E.2d 241. [HN2] Summary
judgment is properly granted when: (1) there is no
genuine issue as to any material fact; (2) the moving
party is entitled to judgment as a matter of law; and (3)
reasonable minds can come to but one conclusion, and
that conclusion is adverse to the party against whom the
motion for summary judgment is made. Harless v. Willis
Day Warehousing Co.(1976), 54 Ohio St.2d 64, 66, 375
N.E.2d 46, 8 O.O.3d 73; Civ.R. 56(C).

[*P12] [HN7] Summary judgment is appropriate

when there is no genuine issue as to any material fact. A
"material fact" depends on the substantive law of the
claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc.
(1995), 104 Ohio App. 3d 598, 603, 662 N.E.2d 1088,
citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S.
242, 247-248, 106 S. Ct. 2505, 91 L. Ed. 2d 202.

[*P9] [HN3] "[A] party seeking summary

judgment, on the ground that the nonmoving party cannot
prove its case, bears the initial burden of informing the
trial court of the basis for the motion, and identifying
those portions of the record that demonstrate the absence
of a genuine issue of material fact on the essential
element(s) of the nonmoving party's claims. The moving
party cannot discharge its initial burden under Civ.R. 56
simply by making a conclusory assertion that the
nonmoving party has no evidence to prove its case. [**5]
Rather, the moving party must be able to specifically
point to some evidence of the type listed in Civ.R. 56(C)
which affirmatively demonstrates that the nonmoving

[*P14] [HN8] "Defamation is a false publication

that injures a person's reputation, exposes the person to
public hatred, contempt, ridicule, shame or disgrace or
affects the person adversely in his trade or business.
Matalka v. Lagemann (1985), 21 Ohio App.3d 134, 136,
21 Ohio B. 143, 486 N.E.2d 1220. Defamation can be in
the form of either slander or libel. Slander generally
refers to spoken defamatory words, while libel refers to
written or printed defamatory [**7] words. Lawson v.
AK Steel Corp. (1997), 121 Ohio App.3d 251, 256, 699
N.E.2d 951; see, also, A & B-Abell Elevator Co., Inc. v.
Columbus/Central Ohio Bldg. & Contr. Trades Council
(1995), 73 Ohio St. 3d 1, 7, 1995 Ohio 66, 651 N.E.2d

[*P13] In Regional Imaging Consultants v.

Computer Billing Serv., 7th Dist. No. 00 CA 79, 2001
Ohio 3457, at P63-67, this court detailed the law
concerning defamation as follows:

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2003-Ohio-1224, *P14; 2003 Ohio App. LEXIS 1195, **7

1283.

the press.'

[*P15] [HN9] "The essential elements of a

defamation action, whether slander or libel, are that the
defendant made a false statement, that the false statement
was defamatory, that the false defamatory statement was
published, that the plaintiff was injured and that the
defendant acted with the required degree of fault.
Celebrezze v. Dayton Newspapers, Inc. (1988), 41 Ohio
App.3d 343, 346-347, 535 N.E.2d 755. In an action for
defamation, the plaintiff's prima facie case is made when
he has established a publication to a third person for
which defendant is responsible, the recipient's
understanding of the defamatory meaning, and its
actionable character. Hahn v. Kotten (1975), 43 Ohio
St.2d 237, 243, 331 N.E.2d 713.

[*P18] [HN13] "Whether allegedly defamatory

language is opinion or fact is a question of law for the
court to decide. Yeager v. Local Union 20 (1983), 6 Ohio
St. 3d 369, 372, 6 Ohio B. 421, 453 N.E.2d 666 [**9] .
A 'totality of the circumstances' test is used to determine
whether a statement is fact or opinion. Vail, 72 Ohio St.
3d at 281. This is a fluid test and calls for the court to
consider the specific language used, whether the
statement is verifiable, the general context of the
statement and the broader context in which the statement
appeared. Id."

[*P16] [HN10] "Defamation is further categorized

as defamation per se and defamation per quod.
Defamation per se occurs when material is defamatory on
its face, i.e., by the very meaning of the words used;
defamation per quod occurs when material is [**8]
defamatory through interpretation or innuendo. Moore v.
P. W. Pub. Co. (1965), 3 Ohio St.2d 183, 188, 209
N.E.2d 412; Becker v. Toulmin (1956), 165 Ohio St. 549,
556, 138 N.E.2d 391. Written matter is libelous per se if,
on its face, it reflects upon a person's character in a
manner that will cause him to be ridiculed, hated, or held
in contempt, or in a manner that will injure him in his
trade or profession. Id. at 553. When a writing is not
ambiguous, the question of whether it is libelous per se is
for the court to decide. Id. at 555.
[*P17] [HN11] "Under Ohio law, for a statement to
be defamatory it must be a statement of fact and not of
opinion. Vail, [v. Plain Dealer Publishing Co.] supra, 72
Ohio St.3d 279, at 281, [1995 Ohio 187, 649 N.E.2d 182]
. [HN12] Section 11, Article I of the Ohio Constitution
provides in relevant part: 'every citizen may freely speak,
write, and publish his sentiments on all subjects, being
responsible for the abuse of the right; and no law shall be
passed to restrain or abridge the liberty of speech, or of

[*P19] In this case, other than making the general

assertion, appellant fails to explain how the statements in
question were defamatory or point to evidence in support
thereof. When appellee made the statement that appellant
may have been trying to "fudge" the transfer application,
he was raising a legitimate point. Why would appellee
want to transfer a liquor license designed for a
bar/nightclub to a location that was supposedly only
going to be run as a carryout? As for his comments
concerning the University Club, appellee again had a
legitimate basis for those statements. Appellee explained
the numerous problems and calls his department has had
with the University Club, fights, public intoxication,
public indecency, and a drive-by shooting. Based on the
totality of the circumstances, appellee's statements do not
rise to the level of [**10] defamation and were
statements of opinion, not fact.
[*P20] Accordingly, appellant's sole assignment of
error is without merit.
[*P21] The judgment of the trial court is hereby
affirmed.
Judgment affirmed.
Waite and DeGenaro, JJ., concur.