Gosden v. Louis , 116 Ohio App. 3d 195 ( 1996 )

I concur with the overruling of assignments of error two, three, five, six and eleven. I dissent as to assignments of error twelve, thirteen and fourteen and would overrule them for the reasons stated herein as to the remaining assignments. I dissent from the disposition of assignments of error one, four, seven, eight, nine and ten.

As to the first assignment of error, I do not believe that the letter is libel per se as a matter of law. At worst, it is ambiguous and, therefore, subject to the trial court's discretion. The determination of whether a publication is defamatory per se is solely within the discretion of the trial court. Becker v. Toulmin (1956), 165 Ohio St. 549, 60 O.O. 502,138 N.E.2d 391; McCartney v. Oblates of St. Francis de Sales (1992), 80 Ohio App.3d 345, 609 N.E.2d 216. To borrow and paraphrase a well-known statement: Proof of libel in the air, so to speak, will not do. To be actionable, a statement must be "of and concerning" the plaintiff:

"If some question exists as to whether offensive words are of and concerning the plaintiff, the fact dispute is one for the jury; if the words are unambiguous as to the person referred to, the issue may be one of law. Thus, whether a statement is of and concerning the plaintiff is ordinarily a question for the trier of fact." See 50 American Jurisprudence 2d (1995) Libel and Slander, Section 28.

The letter does not unambiguously accuse the Gosdens of the objectionable behavior. It is subject to interpretation and, thus, required proof of who was libeled and how they were damaged. The language would support the trial court's ruling that the letter is not libel per se. The trial court submitted the entire issue to the jury, which, I believe, was justifiable.

As to assignment four, the fact is that the jury awarded punitive damages pursuant to the more demanding instructions given. Therefore, it is not error that a lesser standard was not given. It was the court who took away the jury's award of punitive damages and not because of a wrong legal standard in the instructions but because the jury did not award any compensatory damages following a proper jury instruction.

As to assignment seven, the evidence complained of does not appear to have been prejudicial to the jury, since it awarded punitive damages in spite of the questioned evidence of other lawsuits.

As to the eighth assignment, I have already stated that the letter was not libelous per se. Therefore, the court's ruling that Paul Gosden did not prove any injury or damages should stand.

Regarding the ninth assignment, the letter was not libelousper se, there would not be a presumption of damages, the defamation claim fails for want of damages and, accordingly, there was no underlying tort to support the civil conspiracy.

As to assignment ten, I believe that because there was a punitive damage award by the jury, the lack of information sought could not have been prejudicial. It was the court who took away the punitive award and not because of any lack of financial information.

I would affirm the judgment below.