IN THE SUPREME COURT OF OHIO

Nicholas C. Georgalis, et. al.,

Appellants

V.

Ohio Turnpike Commission, et. al,

Appellees

On Appeal from the Cuyahoga CountyCourt of Appeals,

Eighth Appellate District

Court of AppealsCase No. CA 10 094478

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANTS NICHOLAS C. GEORGALIS, et. al

George K. Simakis(0029084)Simakis & Kisil, LLC5900 Ridge Road, Suite 200Parma, OH 44129Phone: 440 842 7923Fax: 440 842 7937gksimakiskgmail.comCounsel for AppellantTeledata Services, Ltd.

Moira H. Pietrowski (0070308)Roetzel & Andress, LPA222 South Main StreetAkron, Ohio 44308Phone: 330-376-2700Fax: 330-376-4577mpietrowskigralaw. comCounsel for AppelleesThe Ohio Turnpike Commission AndKerry Ferrier

NOV 10 2090

CLERK ?lF G01 IRTSUPREiUiL uul^r; ^ U;= L [

Nicholas C. Georgalis6981 Ivandale RoadIndependence, Ohio 44131Phone: 216-401-5326ngeorgalis@wowway.comAppellant proceeding Pro Se

Edward Ryder (0008627)Mazanec, Raskin, Ryder & Keller Co., LPA100 Franklyn's Row34305 Solon Rd.Cleveland, Ohio 44139Phone: 440-248-7906Fax:440-248-8861inldemencicgmrrklaw.comCounsel for AppelleesHNTB Corporation

FLEDNOV 18 2010

CLERK OF COURTSUPREME COURT OF OHIO i

Table of Contents

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION .............. I

Ohio Civil Rule 56 is unconstitutional . ....................................................................................... 7

CONCLUSION .........:...................................................................................:............................... 14

CERTIFICATE OF SERVICE .... ............................:.................................................................... 16

APPENDIX ...........................................................................................................:....................... 17

Opinion and Judgment Entry of Eighth Appellate District Court, Cuyahoga County .............. 17

Judgment Entry of Cuyahoga County Common Pleas Court .................................................... 18

2

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

The instant case is a case of public and great general interest because it involves a

substantial constitutional question. All legal experts attest to the fact that since the adoption of

Ohio Civil Rule 56, i.e. Summary Judgment, the numbers of civil cases that have gone to ajury

have decreased dramatically and continue to decrease. 1'2 The constitutionality of Ohio Civil

Rule 56 has never been contested before this Court yet its import is significant since it governs a

fundamental right that is explicitly and unequivocally guaranteed by the Ohio Constitution, i.e.

trial by jury.

Ohio Civil Rule 56, Summary Judgment is unconstitutional because it deprives litigants,

in the instant case Plaintiffs/Appellants, the constitutional right to trial by juiy. Accordingly it

violates Article 1.05 of the Ohio Constitution which plainly and unequivocally states that "The

right of trial by jury shall be inviolate... " Ohio Civil Rule 56 endows powers upon the court that

were never intended by the authors of the Ohio Constitution and the people of the State of Ohio

who ratified the constitution. Summary judgment usurps the constitutional power of the jury to

decide the facts in a case and instead unconstitutionally endows the judge with these powers,

powers that the judge was never intended to have.

There can be no doubt that the decision as to whether or not there are "no genuine issue

as to any material fact" is itself ajudgment on the facts in the case. Ajudgment on the facts in a

case is a power reserved for the jury under the constitution as it is a matter of fact not law.

1 See attached essay by Professor Thomas's essay Thomas, Suja A., Why Summary Jud mg ent isUnconstitutional. Virginia Law Review, Vol. 93, p. 139, 2007; University of Cincinnati PublicLaw Research Paper No. 06-04 - pg. 141 FN 42 A review of the Cuyahoga County Common Pleas Court's recent rulings show that there were14 motions for summary judgment with only one case of the 14 going to trial or about 7%. Theone case that went to trial was a plaintiffls motion for summary judgment.

1

Ohio Civil Rule 56 introduces ambiguity between the law in a case and the facts in a case

as well as a procedural bias which undermines a litigant's right to a jury trial. While case law

has attempted to erase this ambiguity the ambiguity has persisted. In the instant case the

ambiguity and procedural bias were employed by the Court below to deny pro se

Plaintiff/Appellant his day in court. Ohio Civil Rule 56 places the judge in the role of a

gatekeeper to a citizen's exercise of a fundamental right, i.e. the inviolate and inalienable right to

a jury trial.

Ostensibly Ohio Civil Rule 56 is intended to filter frivolous cases and cases that have no

merit and thereby improve judicial efficiency. However this is the purpose of a motion to

dismiss. Therefore Ohio Civil Rule 56 unjustly and unfairly adds an additional hurdle that a

litigant must overcome in order to bring his pleading before a jury. In practice Ohio Civil Rule

56 is used bydefendants as a second motion to dismiss which invariably is granted by the Court.

It therefore tilts the scale of justice to defendants in an action at the expense of the rights of

plaintiffs. After a motion to dismiss is denied the discovery process proceeds as if a trial is to be

held. The expenses associated with discovery are then wasted by the granting of summary

judgment.

De novo review of a motion for summary judgment at the appellate level is no

compensation for the fact that Ohio Civil Rule 56 denies citizens the right to a trial by jury. The

substitute of the appellate court for the trial court in determining whether or not there are "... no

genuine issue as to any material fact... " is still a judgment on the facts. The fact that appellate

courts and the Supreme Court at times overtucn the granting of a motion for summary judgment

on the basis that there are genuine issued of material fact is testimony that judges are ruling on

2

the facts in the case and substituting their judgment for the judgment of the jury. Accordingly

the Court by its own actions is admitting that it is usurping the power of the jury.

Ohio Civil Rule 56 violates the Seventh Amendment of the United States Constitution

because it denies litigants the right to a jury trial. The Seventh Amendment states "In Suits at

common law... the right of trial by jury shall be preserved, and no fact tried by jury, shall be

otherwise re-examined in any Court of the United States, than according to the rules of the

common law. " We refer the Court to an article published in the Virginia Law Review by law

professor Suja A. Thomas of the University Of Illinois College Of Law. Professor Thomas's

essay Thomas, Suja A., Why Summary Judgment is Unconstitutional. Virginia Law Review,

Vol. 93, p. 139, 2007; University of Cincinnati Public Law Research Paper No. 06-04. Professor

Suja A. Thomas' essay is hereby incorporated herein as if fully written.

STATEMENT OF THE CASE AND FACTS

The instant case is a defamation case which includes a claim of illegal wiretapping for the

purpose of harming Plaintiff/Appellants in violation of ORC § 2933.52.

On June 19, 2007, the Defendant/Appellee Ohio Turnpike Commission (OTC) entered

into a contract with non-party Telsource Corporation ("Telsource") to construct a replacement

fiber optic telecommunication system ("Project") along the Ohio Turnpike. The value of the

contract was $4.1 million and it involved the installation and operation of complex

telecommunication equipment in 60 sites along the 238 miles of the Ohio Turnpike. This was a

fixed price contract. The project was to complete in nine months. OTC appointed its employee

Defendant/Appellee Ferrier as the program manager to oversee the Project on its behalf.

Telsource's VP and co-owner Rich Ackerman contracted with Plaintiff/Appellant Georgalis dba

Teledata Services, Ltd. to act as Telsource's project manager on the Project. Telsource agreed to

3

pay Georgalis a fixed fee of $97,500 for the project. OTC retained Defendant/Appellee HNTB

under a separate contract as its construction administrator. HNTB hired Garrick Lipscomb to act

as construction administrator. The contract between OTC and HNTB called for an hourly charge

to OTC with an amount not to exceed $511,000. As a result of the contract terms between OTC

and HNTB, HNTB made more money the longer the project lasted. However as a result of the

contract terms between OTC and Telsource and between Telsource and Plaintiff/Appellants they

each made less money the longer the proj ect lasted. Georgalis was approved as a subcontractor

project manager by Dan Castrigano, Chief Engineer for the OTC on August 21, 2007.

Payment to Telsource by OTC was based on the proportion of the equipment delivered,

installed and operational. Similarly payment to Georgalis by Telsource was based on the

proportion invoiced to OTC and paid by OTC. Payment to HNTB by OTC on the other hand

was based on hours invoiced by HNTB.

On October 12, 2007 HNTB approved and OTC paid 91 % of the total project value to

Telsource, less 10% retained amounts. This payment was for the complete installation of all the

equipment including cabling, powering and operation of the equipment in the 60 sites along the

entire 238 mile length of the Ohio Turnpike. It also included training and documentation

provided by Georgalis to OTC and approved by HNTB. At the same time HNTB employee

Lipscomb reported to HNTB management that the project was on budget, on schedule, within

specifications, operational, and that he expected to complete ahead of schedule.

On October 17, 2007 Ferrier and Lipscomb met in private with third party and

Plaintiff/Appellants' client Telsource's vice president of local operations, Bob Cain and

presented in writing numerous false, defamatory, and libelous statements about Georgalis and his

work on the project. Among the more egregious statements were "...Craining by a marginally

4

qualified trainer... ;"... lacking the necessary knowledge and experience for a project of the size

and scope of the fiber optic project"; lacking "... talent commensurate with the level and

complexity of the project"; Georgalis' management was not "systematic and productive ";

"Equipment installation deficiencies are lingering";"Provisioning is being performed in a

haphazard undocumented fashion and without regard for the guidance documents that have been

developed". These remarks were inconsistent with the payment of the invoices and contradicted

the report that Lipscomb had given to HNTB management. These remarks misrepresented to

Plaintiff/Appellants' client the state of the project and Georgalis' work on the project in order to

have Georgalis removed from the project and cause him harm.

Following the October 17, 2007 meeting non-party Cain issued an email to Ferrier on

October 18, 2007 stating that subcontractor Georgalis would remain as a trainer and project

manager.

On Wednesday, October 24, 2007 Lipscomb arranged for an impromptu conference call

with Georgalis which was to include personnel from HNTB, Ferrier, and Cisco, the equipment

manufacturer. Georgalis was told that the purpose of the conference call was to discuss a

proposal which Georgalis submitted to resolve a serious engineering problem that prevented the

project from moving forward. The call was held at 4:30 PM however Cisco was not onthe call.

During the call Defendant/Appellees falsely accused Georgalis of doing unapproved work and

not following the approval process which Georgalis disputed. This conference call was tape

recorded without the knowledge or permission of Georgalis and it was transcribed by

Defendants/Appellees.3 The conference call ended with Ferrier issuing a verbal stop order and

' Regularly scheduled project meetings were held every Tuesday at 10:00 AM. These meetingswere tape recorded. There were frequent impromptu meetings and conference calls held that

5

ordering Georgalis off the Ohio Turnpike premises. On October 26, 2007, Ferrier issued a letter

("Letter") to Telsource Vice President Bob Cain with copies to others including Rich Ackerman,

VP and part owner of Telsource, formalizing the stop work order. In this Letter Ferrier explicitly

referenced the tape recorded telephone conference that took place on October 24, 2007. In the

Letter, Ferrier made defamatory statements about Georgalis including accusing Georgalis of

performing unapproved work, while misrepresenting the state of the project, and misrepresenting

what Georgalis had said during the conference call. Following the issuance of the stop work

order and the publication of the October 26, 2007 Letter, Georgalis was removed as Telsource's

project manager on October 31, 2007 to fulfill Ferrier's condition for lifting of the stop work

order.

Having failed to remove Georgalis as project manager at the October 17, 2007 meeting

with Cain, Defendant/Appellees conspired to record his conversation and impose a stop work

order one week later under false pretenses. Ferrier then formalized the stop work order in a

published defamatory letter which directly led to removing Georgalis as project manager and his

loss of $40,000 in revenue.

After his removal as project manager Georgalis became a consultant on an as-needed

basis. Georgalis continued as a consultant for about three weeks and he was paid an additional

$20,000 against his original contract. After this payment no other payments were made and a

dispute arose with Ackerman regarding payment of the balance of his contract which was the

$40,000. In this dispute Georgalis argued that since Telsource was paid for 91% of the project as

a result of Georgalis' efforts then Georgalis was due at least 91% of his contract. Ackerman

disagreed and wrote that in his opinion Georgalis was not due that amount and that if he

were never recorded except for the October 24, 2010 impromptu conference call which occurred

on a Wednesday at 4:30 PM.

6

disagreed he could talce the matter to arbitration. This led to the final dissolution of the project

management agreement with Telsource and the long standing nine year business relationship

with Telsource.

Following Georgalis' exit from the project, HNTB's project manager, Katie Ott

published a December 13, 2007 letter to Ferrier falsely accusing Georgalis of performing work

that "did not meet all of OTC's original design requirements ". This letter is part of the public

record on the project and has the effect of prejudicing Georgalis in any future work on such

projects with others. Also following Georgalis' removal as project manager the project fell

behind schedule by seven months and HNTB received the entire amount of its contract or

$511,000. Had the project completed on time HNTB would have earned about $400,000.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Ohio Civil Rule 56 is unconstitutional.

Ohio civil rule 56(C) states"

"... Summary judgment shall be rendered forthwith if the pleadings, depositions, answersto interrogatories, written admissions, affidavits, transcripts of evidence, and writtenstipulations of fact, if any, timely filed in the action, show that there is no genuine issueas to any material fact and that the moving party is entitled to judgment as a matter oflaw. No evidence or stipulation may be considered except as stated in this rule. Asummary judgment shall not be rendered unless it appears from the evidence orstipulation, and only from the evidence or stipulation, that reasonable minds can come tobut one conclusion and that conclusion is adverse to the party against whom the motionfor summary judgment is made, that party being entitled to have the evidence orstipulation construed most strongly in the party's favor...."

Ohio civil rule 56 is unconstitutional because it endows the judge in a civil case with the power

to decide whether or not the facts in the case are in dispute, i.e. whether or not there is "... no

genuine issue as to any materialfact... " and whether or not based on the facts as decided by the

judge "...reasonable minds can come to but one conclusion and that conclusion is adverse to... "

the non-moving party. There can be no doubt that the decision as to whether or not there are

7

"genuine issues as to any material fact" is itself a judgment on the facts in the case.

Accordingly there can be no doubt that these are powers reserved for the jury as they are matters

of fact yet Ohio Civil Rule 56 gives these powers to the judge.

While Ohio Civil Rule 56 provides for the plaintiffs or defendants in an action to file a

motion for summary judgment, the trial judge in the instant case admonished pro se

Plaintiff/Appellant Georgalis when Georgalis proposed filing plaintiffs' motion for summary

judgment by saying to him "Don'tfile a motion for summary judgment. You are wasting your

time. Don't file a motionfor summaryjudgment. " Defense counsel thanked the judge for this

admonishment of Plaintiff/Appellant. See excerpt below from the April 1, 2009

Plaintiff/Appellants' deposing of OTC employee, Dan Castrigano during which the Court was

asked to intervened to resolve a question.4 Page 150-151.

15 MR. GEORGALIS: But16 Your Honor, based on the17 previous deposition, I am18 in a pretty good position19 to file my opposition to20 summary after tomorrow's21 deposition.22 THE COURT: Then drop23 it.24 MR. GEORGALIS: And25 also ask for my own motion for

I summary judgement (sic) at the same2 time.3 THE COURT: Don't4 file a motion for summary5 judgement (sic).6 You are wasting your7 time. Don't file a motion for8 summary judgment.9 MR. GEORGALIS: All10 right.11 MR. GREENBERG: Thanks,12 Judge.13 MS. PIETROWSKI: Thank14 you, Judge.

Mr. Greenberg and Ms. Pietrowski are defense counsel. Clearly the trial court acted to deprive

litigants, in the instant case pro se Plaintiff/Appellants, the constitutional right to trial by jury. It

did this because at the time of the above deposition the trial court relied on

' Deposing of the witnesses produced by Defendants took place at the courthouse

8

Defendants/Appellees' initial Motion for Summary Judgment which was filed well before most

of Plaintiff/Appellants' deposing of witnesses was conducted. With Defendant/Appellees'

Motion for Summary Judgment in hand it is clear that the trial court had made up its mind to

grant the motion for summary judgment prior to Plaintiff/Appellants' completion of discovery

and regardless of any evidence put forth by Plaintiff/Appellant, wherefore the trial court's

admonition to Plaintiff/Appellant "Don't file a motion for summary judgement (sic). You are

wasting your time. Don'tfile a motion for summary judgment. "

A review of the trial court docket will show that the trial court allowed

Defendants/Appellees to file their motion for summary judgment before Plaintiff/Appellants

conducted their deposing of witnesses and before Plaintiff/Appellants submitted their affidavit.

The trial court should have denied Defendant/Appellees Motion for Summary judgment on the

basis that Defendant/Appellees refusal to produce witnesses to be deposed and because the trial

court refused to rule on Plaintiff/Appellants' repeated motions to compel. It was only after

Defendant/Appellees filed their initial Motion for Summary Judgment that the trial court then

ordered Defendant/Appellees to produce witnesses. Defendants/Appellees then acted to further

delay the proceedings by filing a motion to join Teledata Services, Ltd. to the case. Teledata

Services was initially struck from the case because it was not represented by an attorney at the

time. The motion to join was granted and Teledata Services, Ltd. was once again joined to the

case after Defendant/Appellees filed their initial Motion for Summary Judgment. After another

year Plaintiff/Appellants managed to depose witnesses and file their affidavit and opposition to

Defendant/Appellees Motion for Summary Judgment. At this point the court allowed

Defendant/Appellants to file a second Motion for Summary Judgment adding new subject matter

to their original motion. It is this later motion that the Court granted with no subsequent hearing.

9

Therefore Defendant/Appellees were given three opportunities by the trial court to avoid taking

this case before the jury. First in their motion to dismiss, second in their initial filing of a Motion

for Summary Judgment prior to Plaintiff/Appellants' completion of discovery, and third in their

filing of a second Motion for Summary Judgment with new subject matter which was granted.

Accordingly as Ohio Civil Rule 56 provides a bases for procedural means to deny trial by

jury, as well as the means for a judge to decide the facts in a case, it violates Article 1.05 of the

Ohio Constitution which plainly and unequivocally states that "The right of trial by jury shall be

inviolate... ". Ohio Civil Rule 56 was used in the instant case to impose the will of the court

below on pro se litigant through manipulation of both the legal process and the facts in order to

favor Defendant/Appellees in the case. Through a series of winks and nods to defense counsel,

the trial court allowed the process to proceed in such a manner as to benefit the

Defendant/Appellees while misrepresenting the facts in Plaintiff/Appellants' case and distorting

the facts to fit the case law. The result was to deny Plaintiff/Appellant the right to ajury trial

simply because of his pro se status. This is an abuse of the law by the very institutions that are

charged with the preservation of the law. Ohio Civil Rule 56 endows powers upon the Court that

were never intended by the authors of the Ohio Constitution and the people of the State of Ohio

who ratified the constitution. Summary Judgment acts to usurp the constitutional power of the

jury to decide the facts in a case and instead unconstitutionally endows the judge with powers

that the judge was never intended to have. Ohio Civil Rule 56 places the judge in the role of a

gatekeeper to a citizen's exercise of a fundamental right, i.e. the right to a jury trial under the

law. This is characteristic of a tyranny not of a constitutional republic.

To summarize, in the instant case Defendants/Appellees had their motion to dismiss

denied by the trial court. The court then asked for dispositive motions by September 16, 2008.

10

Then while reftising to produce witnesses to be deposed by Plaintiff/Appellant, and with the trial

court cooperating by refusing to rule on Plaintiff/Appellants' motions to compel the production

of witnesses, Defendant/Appellees filed their initial Motion for Summary Judgment in

accordance with the court's order. With Defendant/Appellees' Motion for Summary Judgment

in hand, the trial court then compelled the production of witnesses by Defendant/Appellees.

Then after undergoing a long and tortious discovery process that lasted two years resulting in a

total of twelve depositions and thousands of pages of documents, and advising

Plaintiff/Appellants not to file their own motion for summary judgment, the trial court granted

Defendants/Appellees' second motion for summary judgment on the paper.

Plaintiff/Appellants timely filed their appeal on the basis that there are genuine issues of

material facts, providing evidence accordingly. In their de novo review, the Court of Appeals

ignored Plaintiff/Appellants' evidence that the facts and events in the case were fabricated by

Defendant/Appellees. Rather than rule on the veracity of these facts based on the evidence, the

Appellate Court made at least three additional errors of their own in the material facts of the case

while affirming the trial court's judgment. Three of the more egregious material facts that were

fabricated by the court below included: Referring to Plaintiff/Appellants' client, Rich

Ackerman, a non-party, as a defendant; alleging that Plaintiff/Appellant Georgalis attended the

October 17, 2007 meeting which the evidence shows he never attended; alleging that there was a

common interest which was used to invoke qualified privilege when the terms of contracts which

defined the interest among the parties were at odds with each other not in common. These and

other errors distorted the sequence, events and facts in the case resulting in a judgment based on

facts not construed in favor of the non-moving party. In this case the Appellate Court failed to

correct the errors of material fact introduced by the trial court and only served to further

11

confound the facts in the case. If the intent of the de novo review is to reassure citizens that

there are protections against an abuse of summary judgment by the trial court then it failed in this

case. The substitute of the appellate court for the trial court in determining whether or not there

are "...genuine issues as to any material fact... " is still a judgment on the facts by the Court.

The cost and time that it took to prepare litigant's respective cases would have been much

less had the case gone to trial after discovery. Ohio Civil Rule 56 acted therefore not only in

denial of a jury trial but also in more costs to litigate the case.

The volume of documents and testimony produced by this case was clearly more than the

Court below could or desired to assimilate. An examination of the record transferred from the

trial court to the court of appeals by Plaintiff/Appellant Georgalis revealed that none of the

depositions and evidence cited by Plaintiff/Appellants in their opposition to the motion for

summary judgment was even read by the trial court. All the depositions taken by

Plaintiff/Appellants remained sealed by a notary and/or securely taped. Clearly the trial court

relied only on the moving parties' version of facts contrary to the law. Similarly the Appellate

Court ruled on facts of the case as presented by Defendants/Appellees while completely ignoring

the evidence presented.by Plaintiff/Appellants who disputed these facts in their briefs, and

despite the appellate court's stated obligation to construe the facts in favor of the non-moving

party, which in itself is an admission that it is ruling on the facts. Not only did the appellate

court ignore Plaintiff/Appellants' briefs and the documentary evidence that they presented, but

also the appellate court introduced errors of fact of their own as cited above in its attempt to

squeeze the facts to fit the case law. Had the facts in the case been presented to a jury the

outcome in the case would have been different, but the court below usurped the

Plaintiff/Appellant's right to a jury trial through fiat.

12

In denying Plaintiff/Appellants a jury trial, Summary Judgment prevented an early

settlement to this case. Ohio Civil Rule 56 resulted in the attorneys in the case taking what

would otherwise have been the just compensation to Plaintiff/Appellants in a settlement. The

longer the case dragged onthe greater the loss to both sides with the attorneys the only

beneficiaries. In other words Ohio Civil Rule 56 serves to benefit attorneys at the expense of the

loss of rights guaranteed by the Constitution. A pro se litigant has no chance in such an

environment, yet a pro se litigant has the right to pursue his own case. But if the system is rigged

against him then this right is nullified. Therefore not only does Ohio Civil Rule 56 deny litigants

their right to ajury trial at the whim of ajudge but also Ohio Civil Rule 56 serves to nullify the

right to represent oneself. And since there is no jury trial, jury nullification, a right under

common law, is also eliminated. Therefore not only does Ohio Civil Rule 56 violate the

expressly constitutionally guaranteed right to trial by jury it violates the common law rights to

represent oneself and jury nullification and accordingly it is an assault on the freedom of the

individual by the State.

Ohio Civil Rule 56 violates the Seventh Amendment of the United States Constitution

because it denied Plaintiff/Appellant the right to a jury trial. The Seventh Amendment states "In

Suits at common law,... the right of trial by jury shall be preserved, and no fact tried by jury,

shall be otherwise re-examined in any Court of the United States, than according to the rules of

the common law. " The Supreme Court has held that "common law" in the Seventh Amendment

refers to the English common law in 1791. And in English common law, summary judgment,

wherein the judge in the case could rule on the facts in a case without a jury trial, did not exist.

We refer the Court to a recent article published in the Virginia Law Review by law professor

Suja A. Thomas of the University Of Illinois College Of Law. Professor Thomas's essay

13

(Thomas, Suja A., Why Summary Jud¢ment is Unconstitutional. Virginia Law Review, Vol. 93,

p. 139, 2007; University of Cincinnati Public Law Research Paper No. 06-04. In her essay

professor Thomas argues that summary judgment is unconstitutional in that it violates the

Seventh Amendment of the US Constitution case law or judicial efficiency notwithstanding.

Although Professor Thomas speaks to the US Constitution and the instant case is under Ohio

Law, the argument made by Professor Thomas is that much more compelling since under the

Ohio Constitution securing the right to a jury trial is at a higher standard than is the Seventh

Amendment in that the right to trial by jury under Ohio Law is "... inviolate... " and there is no

dependence on common law.

Given the way that both the trial court and the appellate court have played fast and loose

with the facts in the instant case, the instant case forms a perfect example of the unjust results

arising from the attempts by the nation's courts, in concert with the nation's attorneys, and legal

establishment to usurp the right to a jury trial, and to nullify the right to represent oneself, and to

arrogate to themselves by fiat the roles and powers of judge, jury and executioner.

CONCLUSION

The instant case is a case of public and great general interest because it involves a

substantial constitutional question. Ohio Civil Rule 56 is unconstitutional because in its

operation and application it violates Article 1.05 of the Ohio Constitution which states that "The

right of trial by jury shall be inviolate... ". Ohio Civil Rule 56 endows the judge in a civil case

with the power to decide whether or not the facts in the case are in dispute, i.e. whether or not

there is "... no genuine issue as to any material fact... " and whether or not based on the facts as

decided by the judge "... reasonable minds can come to but one conclusion and that conclusion

is adverse to... " the non-moving party. There can be no doubt that the decision as to whether or

14

not there are "genuine issues as to any material fact " is itself a judgment on the facts in the case.

A judgment on the facts in a case is a power reserved for the jury under the Constitution as it is a

matter of fact not law. Ohio Civil Rule 56 introduces ambiguity between the law in a case and

the facts in a case as well as a procedural bias which undermines a litigant's right to a jury trial.

In the instant case the ambiguity and procedural bias were unjustly employed by the

Court below to deny Plaintiff/Appellants their day in court. Accordingly Plaintiffs/Appellants

are requesting this Court to declare Ohio Civil Rule 56 unconstitutional and remand this case to

the trial court for the disputed facts to be decided by the jury.

Respectfully submitted this 15th day of November, 2010,

Ge6rge K. Simakisbunsel for Appellant,

Teledata Services, Ltd.

Nicholas C. GeorgalisAppellant proceeding Pro Se

15

CERTIFICATE OF SERVICE

We certify that a copy of this MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT NICHOLAS C. GEORGALIS, et al was sent by ordinary U.S. mail to counsel

for appellees on November 15, 2010:

Moira H. Pietrowski (0070308)Roetzel & Andress, LPA222 South Main StreetAkron, Ohio 44308Phone: 330-376-2700Fax: 330-376-4577mpietrowski a ralaw:comCounsel for AppelleesThe Ohio Turnpike Commission AndKerry Ferrier

eorge K. SimakisCounsel for Appellant,Teledata Services, Ltd.

Edward Ryder (0008627)Mazanec, Raskin, Ryder & Keller Co., LPA100 Franklyn's Row34305 Solon Rd.Cleveland, Ohio 44139Phone: 440-248-7906Fax: 440-248-8861mklemencicna mrrldaw.comCounsel for AppelleesHNTB Corporation

Nicholas C. GeorgalisAppellant proceeding Pro Se

16

APPENDIX

Opinion and Judgment Entry of Eighth Appellate District Court, Cuyahoga County

17

1%17kolourt of Zippearo of OfjioEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 94478

NICHOLAS C. GEORGALIS, ET AL.

PLAINTIFFS-APPELLANTS

vs.

OHIO TURNPIKE COMMISSION, ET AL.

DEFENDANTS-APPELLEES

JUDGMENT:AFFIRMED

Civil Appeal from theCuyahoga County Court of Common Pleas

Case No. CV-648323

BEFORE: Dyke, J., Kilbane, P.J., and Cooney, J.

RELEASED AND JOURNALIZED: October 7, 2010

-i-

FOR APPELLANT

Nicholas C. Georgalis, Pro Se6981 Ivandale RoadIndependence, Ohio 44131

ATTORNEY FOR TELEDATA SERVICES, LTD.

George K. Simakis, Esq.Simakis & Kisil5900 Ridge Road, Suite 200Parma, Ohio 44129

ATTORNEYS FOR APPELLEES OHIO TURNPIKE COMMISSION, ETAL.

Moira H. Pietrowski, Esq.Ronald B. Lee, Esq.Roetzel & Andress, L.P.A.222 South Main Street, Suite 400Akron, Ohio 44308

ATTORNEYS FOR APPELLEE HNTB CORPORATION

John T. McLandrich, Esq.Edward M. Ryder, Esq.Frank H. Scialdone, Esq.Mazanec, Raskin, Ryder & Keller Co.100 Franklin's Row FILED AND JOURNALIZED

34305 Solon Road PER APP.R. 22(0)

Solon, Ohio 44139 QCf 7 2010

ti ALD UERSTCLERK URT Of APP p p

BY

-1-

ANN DYKE, J.:

Plaintiffs-appellants, Nicholas C. Georgalis ("Georgalis") and Teledata

Services, Ltd. ("Teledata") (collectively "plaintiffs"), appeal the trial court's

granting of summary judgment in favor of defendants-appellees, Ohio Turnpike

Commission ("OTC"), HNTB Corporation ("HNTB"), and Kerry Ferrier

("Ferrier") (collectively "defendants"). For the reasons set forth below, we affirm.

On June 19, 2007, OTC entered into a contract with non-party Telsource

Corporation ("Telsource") to build a fiber-optic telecommunications system along

the Ohio Turnpike ("Project"). Telsource's specific duties under the contract

were to perform the installation and configuration migration only. The

engineering portion and project management of the Project were to be completed

by HNTB. In other words, HNTB was to provide drawings and specifications to

Telsource so that Telsource could install and configure the equipment as

required under the contract. OTC appointed Ferrier as program manager to

oversee the Project, including the performance of Telsource and HNTB, on its

behalf.

Telsource, in turn, hired plaintiffs, Georgalis and his company Teledata,

to act as Telsource's project manager on the Project. Georgalis was to report to

Telsource's vice president of operations, Bob Cain. Per the agreement with OTC,

Telsource submitted a list of duties and responsibilities of Georgalis to OTC.

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Among these duties and responsibilities, Georgalis was required to submit, in

writing, any engineering deficiencies, including inadequacies and/or any lack of

detailing in the engineering, via a numbered Request for Information ("RFI") to

the HNTB project manager. Additionally, per the terms of the agreement

between OTC and Telsource, should OTC become dissatisfied with Georgalis's

performance, he could be replaced as project manager. Also, Georgalis testified

that he could terminate his relationship with Telsource at any time.

As performance was undertaken on the Project, Bob Cain testified that

Georgalis frequently demonstrated unprofessional behavior and a lack of

professional interpersonal skills. Georgalis admitted that during one meeting,

which was recorded, he shut his laptop and walked out of the meeting while it

was still in progress. He also acknowledged talking over people at the meetings,

cutting-off people when they were talking, and at one point, threatening to sue

and/or tell the OTC to get their lawyers. Moreover, Bob Cain testified that

Georgalis was prone to fits of screaming and table pounding. Finally, Caine

testified that Georgalis made unauthorized changes and testing to the Project.

As a result of the aforementioned antics, on October 17, 2007, Ferrier, on

behalf of OTC, met with Bob Cain, as well as other employees of HNTB.

Plaintiffs allege that during this meeting, which was recorded, Ferrier "made

numerous false, defamatory, and libelous statements without privilege and in

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bad faith, which were published to several third parties, including Telsource."

More specifically, it was discussed that Georgalis had no experience in installing

the specific type of equipment called Cisco 15454, which was being installed for

the Project. Georgalis does not dispute, and in fact acknowledges, that he had

never worked with this system before the Project. Also during the conference,

the parties discussed Telsource's failure to have an employee at all weekly

progress meetings.

Additionally, plaintiffs complain of a letter ("Letter") Ferrier issued to Bob

Cain on October 26, 2007, with a copy sent to Rich Ackerman, the Chief

Engineer with HNTB, outlining a telephone conversation that occurred on

October 10, 2007 among Georgalis, HNTB, OTC, and Ferrier. Plaintiffs contend

that in the Letter, defendants made defamatory statements about Georgalis and

his conduct regarding the Project, which damaged his reputation. In the Letter,

Ferrier confirmed that a stop work order was issued due to Georgalis's

unprofessional behavior and for a series of other issues related to Georgalis's

work on the Project.

Following these communications and in order to maintain Telsource's

relationship with OTC, Bob Cain decided to remove Georgalis as Telsource's

project manager. He then hired Georgalis in a consultive engineering role,

leaving him with no contact with OTC or HNTB. Telsource, nevertheless,

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continued to compensate Georgalis. Ultimately, however, Georgalis quit this

position by stating to Bob Cain, "Fuck you, Mr. Cain, I quit."

Nevertheless, on January 23,2008, plaintiffs instituted the instant action

against defendants, aIleging defamation, libel per se, libel per quod, slander,

intentional infliction of emotional distress, tortious interference with business

relations, tortious interference with contract, and illegal wiretapping.

On May 8, 2008, the trial court dismissed plaintiffs' claim of intentional

infliction of emotional distress pursuant to Civ.R. 12(B)(6). Additionally, the

court struck all documents, including the complaint, filed by pro se plaintiff

Georgalis on behalf of Teledata because Georgalis is not a licensed attorney and,

under Ohio law, an unlicensed attorney may not represent a corporate entity in

litigation. In response, the defendants filed, and the trial court granted, a

motion to join Teledata as a necessary and indispensable party on November 17,

2008.

On January 27, 2009, Georgalis filed an amended complaint that was

essentially the same complaint he originally filed. On February 26, 2009, the

trial court joined Teledata in all of the claims asserted in this amended

complaint.

Subsequently, on September 15, 2009, defendants OTC and Ferrier filed

a supplemental motion for summary judgment adding to their original motion

_g_

for summary judgment filed on September 16, 2008. Defendants HNTB joined

this supplemental motion on October 15, 2009. Following the completion of

briefing, the trial court granted summary judgment in favor of defendants and

against plaintiffs on all remaining claims in their complaint on December 11,

2009.

Plaintiffs now appeal and present seven assignments of error for our

review. Because we find the first six assignments of error interrelated, we will

address them together. These six errors provide:

"I. Error In Applying The Proper Standard For Summary Judgment.

"II. Error In Properly Considering The Evidence.

"III. Error In Application Of Law To The Evidence.

"IV. The Trial Court Contradicts Its Reasoning And Judgment In Its

Denial Of Defendant/Appellees' Motion To Dismiss.

"V. Agreement To Remove Project Manager If Not Satisfied Precludes

Qualified Privilege And Defamatory Remarks Are Therefore Gratuitous And

Prima Facie Malicious Whether True Or Not.

"VI. Abuse Of Discretion When Trial Court Cited Evidence That

Contradicted Its Conclusions Thereby Acting Arbitrarily And Capriciously In

Granting DefendantslAppellees' Motion For Summary Judgment."

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In these errors, plaintiffs essentially argue that the trial court erred in

granting summary judgment in favor of defendants and against plaintiffs. Our

review of the record supports the trial court's judgment in this regard.

Concerning procedure, we note that an appellate court reviews an award

of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d

102, 105, 671 N.E.2d 241. The reviewing court applies the same standard as the

trial court, viewing the facts of the case in the light most favorable to the

nonmoving party and resolving any doubt in favor of the nonmoving party. Stoll

v. Gardner, 182 Ohio App.3d 214, 2009-Ohio-1865, 912 N.E.2d 165, ¶11.

Pursuant to Civ.R. 56(C), summary.judgment is proper if:

"(1) No genuine issue as to any material fact remains to be litigated; (2)

the moving party is entitled to judgment as a matter of law; and (3) it appears

from the evidence that reasonable minds can come to but one conclusion, and

viewing such evidence most strongly in the favor of the party against whom the

motion for summary judgment is made, that conclusion is adverse to that party."

Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267.

The party moving for summary judgment bears the initial burden of

informing the trial court of the basis for the motion and pointing to parts of the

record that show the absence of a genuine issue of material fact. Dresher v. Burt

(1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. Specifically, the moving party

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must support the motion by pointing to some evidence in the record of the type

listed in Civ.R. 56(C). Id. Once this burden is satisfied, the nonmoving party

assumes the burden of offering specific facts to show a genuine issue for trial.

Id. The nonmoving party may not rest upon the mere allegations and denials in

the pleadings but instead must point to or submit some evidentiary material

that demonstrates a genuine dispute over a material fact. Henkle v. Henhle

(1991), 75 Ohio App.3d 732, 735, 600 N.E.2d 791.

DEFAMATION CLAIMS

In Counts 1 through 4 of plaintiffs' complaint, they allege that defendant

Ferrier, on behalf of OTC, defamed them during the meeting on October 17, 2007

-with employees of Telsource and HNTB. Additionally, plaintiffs allege that

Ferrier defamed them when he wrote the Letter to Bob Cain dated October 26,

2007 and copied it to HNTB. Because we f~ind defendants possessed a qualified

privilege in the communications and did not act with actual malice, we conclude

that the trial court correctly granted defendants summary judgment as to these

claims.

To establish a defamation claim, a plaintiff must demonstrate the

existence of a false publication causing injury to a person's reputation; exposing

him to public hatred, contempt, ridicule, shame, or disgrace; or affecting him

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adversely in his trade or business. Ashcroft v. Mt. Sinai Med. Ctr. (1990), 68

Ohio App.3d 359, 588 N.E.2d 280, paragraph three of the syllabus.

Where a plaintiff establishes a prima facie case of defamation, the

defendant may invoke a qualified privilege defense. Dau6enmire v. Sommers,

156 Ohio App.3d 322, 2004-Ohio-914, 805 N.E.2d 571, ¶ 118. Statements between

parties concerning a common business 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.

"Courts in Ohio have found a'common business interest' privilege exists

where two entities share a mutual business interest, even if (1) the entities are

not `related' other than having a common business interest, or (2) the person

making the statement and the recipient of the statement do not have the same

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employer. See Smith v. Ameriflora 1992, Inc. (1994), 96 Ohio App.3d 179, 644

N.E.2d 1038, appeal not allowed, 71 Ohio St.3d 1427, 642 N.E.2d 635 (holding

that statements by officers of construction management firm made regarding a

construction coordinator for an exposition were qualifiedly privileged where the

statements were made to a sponsor of the exposition for which the firm had been

hired); [Wilson v. A.E.P. (Apr. 21, 1992), Franklin App. No. 91AP-996] (holding

a letter from a company representative to a contractor for the company

regarding the contractor's employee was protected by common business interest

privilege); Gaumont v. EmeryAirFreight Corp. (1989), 61 OhioApp.3d 277, 289,

572 N.E.2d 747 (holding that communications made by Emery employees to

employees of Emery's supplier, Mac Tool Company, were covered bythe qualified

privilege). See, also, Buchko v. City Hosp. Assn. (C.A.6, 1996), 76 F.3d 378

(determining comments by hospital administrator to third-party staffing

company about plaintiff, who was employed by third-party staffing company,

were privileged based on the commonbusiness interest between the hospital and

the third-party staffing company)." Jurczak v. J & R Schugel Trucking Co.,

Franklin App. No. 03AP-451, 2003-Ohio-7039, ¶41.

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

-10-

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; Patio World v. Better Business Bur. Inc. (1989), 43

Ohio App.3d 6, 9, 538 N.E.2d 1098. Reckless disregard for the truth is more

than mere negligence. Kremer, supra. The plaintiff must demonstrate that the

defendant was highly aware of the probability of falsity. Jacobs U. 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; Varanese v. Gall (1988), 35 Ohio St.3d 78, 80, 518

N.E.2d 1177.

Because the evidence indisputably establishes that the communications

made by defendants OTC and Ferrier are qualifiedly privileged, we find that the

trial court did not err in granting summary judgment as to plaintiffs'

defamations claims. Georgalis acknowledged during his deposition that Ferrier

made these statements and communications about Georgalis to parties

connected to the Project and for the purpose of addressing concerns with the

Project. Furthermore, Georgalis testified that only persons connected with the

Project discussed the alleged defamatory statements with him. The record

demonstrates that the only parties at the meeting on October 17, 2007 were

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employees of OTC, Telsource, and HNTB. Additionally, the Letter written by

Ferrier was only distributed to Bob Cain, the vice president of Telsource, and

Rich Ackerman, the chief Engineer of HNTB. According to plaintiffs, the Letter

documented a telephone conference that occurred on October 10, 2007 among

Georgalis, HNTB, and Ferrier. Moreover, the alleged defamatory statements

were made during "a proper occasion" and in a "proper manner" as they were

communicated during a meeting called to discuss the Project and in a letter on

official OTC letterhead discussing matters concerning the Project.

Finally, the record is void of any evidence indicating actual malice by

defendants. Plaintiffs presented no evidence that Ferrier knew that the

statements were false. In fact, we are not convinced that the statements were

in fact false. During his deposition, Georgalis admitted that many of the alleged

defamatory statements regarding his unprofessional conduct, inadequate

training, and lack of Telsource employees at project meetings were true.

Additionally, Bob Cain testified that Georgalis reconfigured the network without

first seeking approval, which was the reason OTC issued the stop work order,

and ultimately, why Cain removed Georgalis as the project manager.

Accordingly, in light of the foregoing, we find, with regard to plaintiffs'

defamation claims, that defendants demonstrated there is no genuine issue of

material fact and that they are entitled to judgment as a matter of law.

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TORTIOUS INTERFERENCE CLAIMS

"When a privilege, qualified or absolute, attaches to statements made in

a defamation action, those statements remain privileged for the purpose of

derivative claims such as intentional infliction of emotional distress and tortious

interference with a business relationship. A & B-Abell Elevator Co., Inc. v.

Columbus/Central Ohio Building & Construction Trades Council, 73 Ohio St.3d

1, 15, 651 N.E.2d 1283, 1995-Ohio-66 (where claims such as tortious

interference and disparagement are based on statements that are qualifiedly

privileged under defamation law, the protection afforded those statements * * *

must also apply in the derivative claims'); Doyle v. Fairfield Machine Co., Inc.

(11th Dist. 1997), 120 Ohio App.3d 192, 218, 697 N.E.2d 667 (`[t)he applicability

of qualified privilege in tortious interference cases has been recognized by Ohio

courts'); Smith v. Ameriflora 1992, Inc. (10th Dist. 1994), 96 Ohio App.3d 179,

187, 644 N.E.2d 1038 (applying qualified privilege to claims for tortious

interference)." Gintert v. WCI Steel, Inc., TrumbullApp. No. 2002-T-0124, 2007-

Ohio-6737.

Because we have already determined that defendants had a qualified

privilege under the defamation action and no actual malice existed, we find that

no genuine issues of material fact exist and defendants are entitled to judgment

as a matter of law as to plaintiffs' two claims for tortious interference.

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WIRETAPPING CLAIM

In plaintiffs' complaint, they also assert that defendants violated R.C.

2933.52 by illegally recording an October 25, 2007 conference call unbeknownst

to Georgalis, who participated in the call. R.C. 2933.52(B)(4) provides that the

wiretapping statute, which prohibits the interception of a wire, oral, or electronic

communication, does not apply when the person intercepting the communication

is a party to the communication. See, also, FZanders u. U.S. (1955), 222 F.2d

163. As the trial court correctly determined, in this instance, the defendants

were parties to the communication, and thus, violated no law by recording it.

Accordingly, having determined that there are no genuine issues of

material fact and defendants are entitled to judgment as a matter of law with

regard to all of plaintiffs' claims for defamation, tortious interference, and

wiretapping, we overrule plaintiffs' first six assignments of error.

Plaintiffs' final assignment of error provides:

"VII. Abuse Of Discretion In Denying Plaintiffs/Appellants' Continuation

Of Deposition Of Defendant/Appellee HNTB Employee Garrick Lipscomb."

We reject plaintiffs' argument that the trial court erred in denying them

the opportunity to continue their deposition of Garrick Lipscomb, an employee

of HNTB. First, we note that plaintiffs fail to direct this court, pursuant to

App.R. 16(A)(7), to the portion of the record evidencing that the trial court

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denied them the opportunity to further depose Lipscomb. Nevertheless,

assuming arguendo that such denial exists, we would find that plaintiffs failed

to demonstrate that the trial court abused its discretion.

A trial court has broad discretion on decisions regarding discovery

matters. Dandrew v. Silver, Cuyahoga App. No. 86089, 2005-Ohio-6355, ¶35.

Accordingly, absent an abuse of discretion, an appellate court must affirm a trial

court's determination concerning discovery issues. State ex rel. The V. Cos. v.

Marshall (1998), 81 Ohio St.3d 467, 469, 692 N.E.2d 198. "The term discretion

itself involves the idea of choice, of an exercise of the will, of a determination

made between competing considerations. In order to have an abuse of that

choice, the result must be so palpably and grossly violative of fact or logic that

it evidences not the exercise of will but the perversity of will, not the exercise of

judgment but the defiance of judgment, not the exercise of reason but instead

passion or bias." (Internal citations and quotations omitted.) Nako ff v. Fairview

Gen. Hosp., 75 Ohio St.3d 254, 256-257, 1996-Ohio-159, 662 N.E.2d 1.

Because we find that plaintiffs previously had the opportunity to depose

and, in fact, did depose Lipscomb on August 14, 2008, any alleged denial by the

trial court to allow plaintiffs to depose Lipscomb a second time would not

constitute perversity of will. Thus, plaintiffs' final assignment of error is without

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merit and the trial court's grant of summary judgment in favor of defendants is

affirmed.

Judgment affirmed.

It is ordered that appellees recover from appellants 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.

MARY EILEEN KILBANE, P.J., andCOLLEEN CONWAY COONEY, J., CONCUR

KEY WORDS:94478

Defamation; qualified privilege; actual malice, tortious interference; wiretapping, R.C.. 2933.52(B)(4)

Judgment Entry of Cuyahoga County Common Pleas Court

18

STATE OF OHIO )) SS:

CUYAHOGA COUNTY )

NICHOLAS GEORGALIS, et al.,

Plaintiffs

IN THE COURT OF COMMON PLEAS

CASE NO. CV-648323

V. ) JUDGMENT ENTRY

THE OHIO TURNPIKE COMMISSIONet al.,

Defendants

Richard J. McMonagle, J.:

The Defendants in this case, The Ohio Turnpike Commission ("OTC") and Kerry Ferrier

("Ferrier") and HNTB Corporation ("HNTB") have filed what amounts to a joint motion for

summary judgment.

The Plaintiffs in this matter are Nicholas Georgalis ("Georgalis") and Teledata Services

("Teledata") (collectively "Plaintiffs"). The Plaintiffs Georgalis and Teledata filed this action on

January 3, 2008 against the aforementioned Defendants claiming defamation, libel per se, libel

per quod, slander), intentional infliction of emotional distress, tortious interference with a

contract, tortious interference with business relations and illegal wiretapping.

The Court has dismissed the intentional infliction of emotional distress claim. On May 9,

2008, the Court struck the filings by the pro se Plaintiff Georgalis on behalf of Teledata; The

Defendants then joined Teledata as a necessary and indispensable party. The Plaintiffs,

Georgalis and Teledata then filed an amended complaint on January 7, 2009 which was basically

the same complaint as was filed originally by Plaintiff Georgalis. Teledata's claim was for

tortious interference with the contract.

STATEI4FENT OF THE CASE

On June 19, 2007, the Defendant OTC entered into a contract with non-party Telsource

Corporation ("Telsource") to construct a fiber optic telecommunications system ("Project") along

the Ohio Turnpike. The OTC appointed Defendant Fenier as the program manager to oversee

the Project on its behalf. Telsource contracted with Plaintiff Teledata and retained Plaintiff

Georgalis to act as Telsource's project manager on the Project. Defendant OTC retained co-

defendant HNTB as its engineer and project manager. As part of its Agreement with Defendant

OTC, Telsource submitted a list of duties and responsibilities of Plaintiff Georgalis. Telsource

was to perform installation configuraflon and migration only. As party of its engineering duties,

HNTB provided drawings and specifications to Plaintiff Georgais so that Telsource could install

and configure the equipment as required under the Agreement. Further, Georgalis was required

to formally address in writing any engineering deficiencies, including inadequacies and/or any

lack of detail in the engineering, through submitting a numbered Request for Information ("RFI")

to the HNTB project manager.

Plaintiffs alleged that "on October 17, 2007, Defendant OTC met with Telsource vice

president of operations, Bob Cain, and "made numerous false, defamatory, and libelous

statements without privilege and in bad faith, which were published to several third parties,

including Telsource." On October 26, 2007, Defendant OTC issued a letter ("Letter") to

Telsource Vice President Bob Cain, and according to Plaintiffs, this Letter documented a

telephone conference that took place on October 24, 2007 among Plaintiff Georgalis, HNTB,

2

OTC and Ferrier. Plaintiffs claim that in the Letter, Defendants made defamatory statements

about Plaintiff Georgalis and his conduct regarding the Project and further damaged Plaintiff

Georgalis' reputation. Plaintiffs also claimed the statements in this Letter were without privilege

and that these statements were published to several third parties, including Telsource. The

Defendants have alleged that the Plaintiffs had no experience installing what has been called

Cisco Equipment 15454 prior to the Project. (Georgalis depo, p. 18, 22, 178). The contract

between the Plaintiff and Defendants was, according to the Plaintiff s depo., p. 477, an At Will

Agreement where Plaintiff could actually leave the Project if he wished. The Plaintiff testified

that he voluntarily tem7inated his relationship with Telesource. (Georgalis depo., p. 146, 254 -

258).

Plaintiff Georgalis was fully aware of an agreement between Telsource and OTC that he

could be replaced if Telsource and OTC were not satisfied with him as the project manager.

Defendant Ferrier was the program manager for the OTC on this project. His job was to

accept the project at the end and to monitor the project as it went along.

As stated in Defendant's subsequent motion for summary judgment, the OTC tape-

recorded the project meetings. Plaintiff Georgalis admitted that at one meeting, he was

frustrated, closed his laptop and walked out of the meeting. (Georgalis depo., p. 208-209).

Plaintiff Georgalis also admitted that he might have talked over people during the meetings, and

that he did cut people off when they were in the middle of expressing their position. (Georgalis

depo., p. 210, 212). Plaintiff Georgalis also admitted to threatening to sue and/or telling the OTC

to get their lawyers at one of the Project meetings. (Georgalis depo., p. 479).

Further, Plaintiff Georgalis was aware of complaints about Scott Andrews' training and

3

told Bob Cain that Ferrier was talking about Scott Andrews when he referred to a marginally

qualified trainer. (Georgalis depo., p. 233, 297, 298).

As an acting project manager for Telsource, Plaintiff Georgalis reported to Bob Cain.

Plaintiff Georgalis made unauthorized changes to the Project. (Bob Cain 4/27/2009 depo. at p.

96).

Further, Bob Cain offered to remove Plaintiff Georgalis as Telsource's project manager

as a result of Plaintiff Georgalis' unauthorized testing and placing Telsource's relationship with

Defendant OTC at risk. (Bob Cain 4/27/2009 depo. at p 98). Telsource, and specifically Bob

Cain, made the decision to remove Plaintiff Georgalis from his role as Telsource's Project

Manager. (Bob Cain 4/27/2009 depo. at p. 99). See Cain depo. p. 96 & 98.

Bob Cain indeed did move Plaintiff Georgalis into a consultive engineering role in

response to Plaintiff Georgalis' unauthorized changes on the project. (Bob Cain 4/27/2009 depo.

at p. 75-76, 100).

Plaintiff Georgalis and Teledata continue to be compensated for engineering services

after Plaintiff Georgalis was removed as a project manager.

Bob Cain testified that Plaintiff Georgalis is unprofessional. (Bob Cain 4/27/2009 depo.

at p. 100).

Bob Cain stated that Plaintiff Georgalis lacked professional interpersonal skills.

Specifically, Plaintiff Georgalis was prone to fits of screaming and table pounding. (Bob Cain

4/27/2009 depo. at p. 110-111). Additionally, Plaintiff Georgalis was disrespectful and

insubordinate and told Bob Cain that he wasn't going to do what Mr. Cain told him to do.

Finally, Plaintiff Georgalis voluntarily resigned from the Project stating "Fuck you, Mr.

4

"Cain, I quit". This lawsuit followed and after discovery, dueling pleadings etc. The

Defendants have filed a motion for summary judgment. Summary judgnment is appropriate

because there are no genuine issues of material fact in dispute and Defendants OTC and Ferrier

are entitled to judgment as a matter of law. Based on the undisputed material facts, reasonable

minds can only conclude that Defendants OTC and Ferrier are entitled to summary judgment

regarding all of Plaintiffs' allegations contained in their Amended Complaint.

PLAINTIFFS' DEFAMATION CLAIMS

In Ohio, defamation occurs when a publication contains a false statement made with

some degree of fault, reflecting injuriously on a person's reputation, or exposing a person to

public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her

trade, business or profession.

As stated by Defendant in their joint motion for summary judgment, a defendant may then

invoke a conditional or qualified privilege. A publication is conditionally or qualifiedly

privileged where circumstances exist, or are reasonably believed by the defendant to exist, which

cast on him the duty of making a communication to a certain other person to whom he makes

such communication in the performance of such duty, or whether the person is so situated that it

becomes right in the interest of society that he should tell third persons certain facts, which he in

good faith proceeds to do. This then follows: A communication 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, is privileged if made to a person having a corresponding interest or duty, even though it

contains matter, which without privilege, would be actionable, and although the duty is not a

5

legal one, but only a moral or social duty of imperfect obligation. The essential elements of a

conditionally privileged communication may accordingly be enumerated as 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. The privilege arises from the necessity of full and

unrestricted communication conceming a matter in which the parties have an interest or duty, and

is not restricted within any narrow limits. Hahn Y. Kotten (1975), 43 Ohio St.2d 237, 245-246.

A qualified privilege can be defeated only by a clear and convincing showing that the

communication was made with actual malice. Wampler v. Higgins (2001) 93 Ohio St.3d 111,

114-115; Jacobs v. Frank (1991), 60 Ohio St.3d 111, 114; Evely v. Carlon Co. (1983), 4 Ohio

St.3d 163, 166.

In a qualified privilege case, actual malice is defined as acting with knowledge that the

statements are false or acting with reckless disregard as to their truth or falsity.

If the communication in question occurs between employees or officers of a corporation

or entity, the communication is qualifiedly privileged, deemed internal and cannot be considered

a defamatory "publication" to an outside third-party. See, e.g., Bein, 61 Ohio App.3d at 385.

In the case sub judice, it is undisputed that the communications made by Defendants OTC

and Kerry Ferrier are privileged since they were fairly made by Kerry Ferrier in the discharge of

some public or private duty and/or in the conduct of his own affairs in matters where his interest

was concerned. It is undisputed that Defendants' statements and communications regarding

Plaintiff Georgalis, Telsource's project manager, and Plaintiff Teledata were made to HNTB and

Telsource personnel in connection with the SONET Project and for the purposing of addressing

concerns with the Project. Plaintiff admits this fact as he testified in deposition that only persons

6

connected with the Sonet project discussed the alleged defamatory statements. (Georgalis depo.,

p. 496).

Kerry Ferrier obtained information from HNTB on technical aspects of the Project and

Plaintiff Georgalis' work and relied upon that information for his statements. (Ferrier Aff.; Plote

Aff.; Koeninger Aff.). Ferrier did not act with knowledge that the statements were false.

Plaintiff Georgalis admitted in his deposition that many of the alleged defamatory

statements regarding his, and thus Teledata's, unprofessional conduct, inadequate training, and

the lack of Telsource employees at project meetings were true. (Georgalis depo., p. 18, 22, 151,

152, 169, 170, 189, 207, 208-210, 212, 233, 249, 275, 297-298, 333, 336, 380, 479).

Additionally, Bob Cain also testified that Plaintiff Georgalis reconfigured the network without

first seeking approval and that this act was the reason that Defendant OTC issued the stop work

order and the reason that Bob Cain removed Plaintiff Georgalis from his Project Manager role.

(Robert "Bob" Cain 4/27/2009 depo., p. 95-96,108,110). Plaintiff Georgalis admitted that the

alleged defamatory statements were, in fact, true.

Plaintiffs Georgalis and Teledata have failed to proffer any supporting evidence for their

allegations that Defendants acted with actual malice.

Plaintiffs' defamation claims must fail since Plaintiffs cannot show that the alleged

defamatory statements had any detrimental effect. Plaintiff Georgalis freely admits that he was

the one who terminated his relationsbip with Telsource. (Georgalis depo., p. 146, 254-258).

Telsource Vice President, Bob Cain, corroborates this testimony. (Robert "Bob" Cain 4/27/2009

depo., p. 100-101). Specifically, at deposition, Mr. Cain testified as follows:

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Q: Why not?

A: Because of Nick's unprofessionalism when he resigned from Telsource to me

personally, so I have a personal bias with him.

What was his, what was the problem with that?

A: He told me, "Fuck you, Mr. Cain, I quit."

Q: How did you respond?

A: I said, "I accept your resignation."

When addressing the claim of tortious interference with business relationships, a key

element in deciding whether one's actions rise to the level of tortious interference is the question

of whether a defendant's actions were privileged.

As stated in Defendants' motion for summary judgment, the following seven factors are

to be considered in deciding whether the alleged conduct was privileged: (1) the nature of the

actor's conduct; (2) the actor's motive; (3) the interests of the party with whom the actor has

interfered; (4) the interests sought to be advanced by the actor; (5) the social interests of

protecting the freedom of contracting and the interference with such; (6) the proximity or

remoteness of the actor's conduct to the interference, and (7) the relations between the parties.

The torts only differ in that tortious interference with a business relation does not require proof of

a contractual relationship. One of the key elements in a tortious interference claim is the

question of whether a defendant's actions were privileged. Ohio law imposes the burden of

proving lack of privilege or improper interference on the plaintiff. The Plaintiffs have failed in

their burden. See, Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415.

In regards to damages, on November 26, 2008, Plaintiff Georgalis legally dissolved his

company, Teledata Services, Ltd. Therefore, Teledata is unable to claim further damages.

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THE WIRE TAPPING CLAIM

Plaintiffs' claim that Defendants, in violation of O.R.C. 2933.52, illegally recorded an

October 27, 2007 conference call, in which Plaintiff Georgalis participated, without his

knowledge.

R.C. 2933.52 expressly prohibits the interception of a wire, oral or eleotronic

communication unless the person intercepting such communication is "(1) a party to the

intercepted communication or (2) obtains the permission of one of the parties to the

communication and the purpose of the interception is not to commit a crime, tort or other

injurious act." There is no "intereeption" or "eavesdropping" when a party to a conversation,

records that conversation" Icl.; see also Flanders v. U.S. (1955), 222 F.2d 163. As a party to the

communicatlon, Defendants were privileged to record it. Further, Plaintiff Georgalis was fully

aware that meetings regarding the Project were being recorded. Georgalis depo., p. 207, 514).

Taping of the meetings was common and known to all individuals who attended, even

telephonically. Defendants were parties to the subject conversation and were privileged to record

it. No illegal wiretapping occurred.

Supplementary Motion for Summary Judgment against Plaintiffs as to all Counts of

Plaintiffs' Amended Complaint is granted.

NO JUST CAUSE FOR DELAY. F1NAL.

December 9, 2009RICHARD J. McMONAGLE, JUDGE

Copies to:

Moira H. Pietrowski, Esq.Roetzel & Andress, LPA222 South Main St.Akron, OH 44308Counselfor Defendants The Ohio Turnpike Commission andKerry Ferrier

Nicholas C. Georgalis6981 Ivandale Rd.Independence, OH 44131Pro Se

George K. Simakis, Esq.P.O. Box 609102Cleveland, OH 44109-0102Counsel for Plainti,ffTeledata Services, Ltd.

Edward M. Ryder, Esq.Mazanec, Rasldn, Ryder & Keller Co., L.P.A.100 Franklin's Row34305 Solon Rd.Cleveland, OH 44139Counsel for Defendant HNTB Corporation

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