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: [email protected] 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.
-2-
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
-3-
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,
-4-
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
-7-
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
-8-
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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