COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 59445, 59496 EMANUEL H. HECHT : : PLAINTIFF-APPELLANT : JOURNAL ENTRY v. : AND : OPINION MICHAEL D. LEVIN : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1991 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. 130291 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: RICHARD E. KLEINMAN, 170 Glen Road, Chagrin Falls, OH 44022 For Defendant-Appellee, Michael D. Levin: MORRIS LEVIN, 55 Public Square, #1010, Cleveland, OH 44113-1901 Of Counsel: FRANK K. LEVIN and JAMES A. LEVIN, 700 One Public Square Cleveland, OH 44113 THOMAS PARIS, Paris & Paris, 55 Public Square, #1575 Cleveland, OH 44113 For Defendant-Appellee, Cuyahoga County Bar Association: Jacob A. H. Kronenberg, 410 Midland Building, Cleveland OH 44115-1092 -2- SPELLACY, J.: On June 1, 1987, plaintiff-appellant Emanuel H. Hecht ("appellant") filed a complaint for libel and slander against defendant-appellee Michael D. Levin ("appellee). According to appellant's complaint, appellee filed a grievance with the Cuyahoga County Bar Association ("Cuyahoga Bar") on June 4, 1986. Said grievance pertained to appellant's guardianship of his father alleging that appellant "did knowingly have his father Jacob Hecht sign a paper when he was totally incompetent as opposed to the competency E. Hecht claimed at the time ...."/1\ In his complaint, appellant alleged that appellee's statements in his grievance were false and made maliciously, with the intent to injure his character and reputation. Appellant further alleged that appellee made such statements with the intent to cause him to make financial concessions in another action pending in Probate Court. Appellant sought compensatory and punitive damages against appellee. On February 12, 1988, appellee filed a motion to dismiss on two grounds. First, appellee argued that appellant failed to state a claim upon which relief could be granted. Appellee asserted that appellant had no claims for libel and slander, /1\ Appellant's father Jacob Hecht, now deceased, was married to appellee's grandmother, Esther Hecht. Prior to this lawsuit, there were legal proceedings in Probate Court regarding the guardianship of Jacob Hecht. Ultimately, appellant was appointed guardian for Jacob Hecht. -3- because the grievance filed with the Cuyahoga Bar was privileged communication as part of a legal proceeding. Appellee further contended that there was no publication since the proceedings were private pursuant to the Supreme Court Rules for Government of the Bar, Rule V(21). Second, appellee argued that appellant failed to join the Cuyahoga Bar as a necessary party. Appellee asserted that if the grievance proceedings were made public, in contravention to the Supreme Court Rules for the Government of the Bar, Rule V(21), then the Cuyahoga Bar should have been made a party. On February 24, 1988, the trial court granted appellant's motion for leave to file an amended complaint. Apparently, appellant did file an amended complaint, and on March 7, 1988, appellee filed identical motions to dismiss the amended complaint./2\ On May 6, 1988, appellant filed a brief in opposition to appellee's motion to dismiss the amended complaint. Appellant argued that the "absolute privilege defense" raised by appellee did not apply herein. On July 26, 1989, the trial court issued its order. In its journal entry, the trial court took notice that appellant did file an amended complaint on February 24, 1988. The trial court also denied appellee's motion to dismiss the amended complaint. /2\ The trial court record is devoid of appellant's amended complaint. However, several motions and orders were filed in response to it. -4- On August 10, 1989, appellee filed a third-party complaint against the Cuyahoga Bar. Appellee alleged that if the Cuyahoga Bar failed to keep the grievance proceedings private and confidential, then he should be entitled to recover from it, if appellant obtained a judgment against him. On October 12, 1989, the Cuyahoga Bar filed a motion to dismiss appellee's third-party complaint for failure to state a claim upon which relief could be granted. The Cuyahoga Bar argued that it was immune from liability, because it was an arm of the Ohio Supreme Court. The Cuyahoga Bar also argued that the grievance proceedings were judicial in nature, thus, they were privileged. Finally, the Cuyahoga Bar claimed that there were no actions for libel and slander, since the grievance proceedings were private and confidential, resulting in no publication. On November 21, 1989, with leave of court, appellee filed a motion for summary judgment, asserting the same issues as those raised in his motion to dismiss. Appellee argued, in his motion for summary judgment, that the grievance proceedings were privileged from libel and slander claims and that there was no publication. Appellee further argued that although he was not a client of appellant, he was permitted to file a grievance against him. In support of his motion for summary judgment, appellee attached affidavits and other documents. On January 29, 1990, appellant filed a memorandum in opposition to appellee's motion for summary judgment. Appellee -5- argued that statements made to bar associations are not privileged. Thus, appellant contended that such statements could be actionable as being libelous or slanderous. In support of his memorandum in opposition, appellant attached his own affidavit and a copy of a letter from appellee's counsel. On February 9, 1990, the trial court issued an order granting the Cuyahoga Bar's motion to dismiss appellee's third- party complaint. In the same journal entry, the trial court granted appellee's motion for summary judgment. Appellant filed a timely notice of appeal from said order on March 8, 1990, and his appeal was assigned Case No. 59445. On February 26, 1990, appellant filed a motion for reconsideration. Appellant claimed that the trial court did not have in its possession his memorandum in opposition, when it ruled upon appellee's motion for summary judgment. Appellant provided no documentary evidence in support of his motion for reconsideration. On March 7, 1990, the trial court, sua sponte, issued an order vacating the July 26, 1989 order which denied appellee's motion to dismiss. After vacating said order, the trial court granted appellee's motion to dismiss. On March 19, 1990, appellant filed a timely notice of appeal from said order and that appeal was assigned Case No. 59496. On April 16, 1990, this court granted appellant's motion to -6- consolidate Case Nos. 59445 and 59496. Appellant subsequently raised the following assignment of error: IS THE FILING OF A GRIEVANCE AGAINST AN ATTORNEY BEFORE THE BAR ASSOCIATION AN ABSOLUTELY PROTECTED RIGHT? Before we consider the substantive merits of this issue, we will address the propriety of the trial court's authority to vacate its July 26, 1989 order and to grant appellee's motion to dismiss. In contrast to Civ. R. 60(A), relating to clerical mistakes, there is no provision in Civ. R. 60(B) permitting the trial court to vacate a judgment on its own initiative. Sperry v. Hlutke (1984), 19 Ohio App. 3d 156, paragraph one of the syllabus. Civ. R. 60(B) specifically provides that "the proper procedure for obtaining any relief from a judgment shall be by motion." In the instant case, appellant did file a motion for reconsideration before the trial court vacated its July 26, 1989 order. However, appellant's motion requested the trial court to reconsider its order granting summary judgment in favor of appellee. There is no motion in the record filed by either party requesting the trial court to reconsider its July 26, 1989 order. Moreover, there is no indication that the July 26, 1989 order contained any clerical mistakes that would permit the trial court to vacate it upon its own initiative. Accordingly, we conclude that the trial court's order vacating its July 26, 1989 order and granting appellee's motion to dismiss is null and void. Thus, we will now address -7- appellant's assignment of error as it pertains to the trial court's order granting summary judgment in favor of appellee. Civ. R. 56(C) provides: A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. Therefore, a Civ. R. 56(C) motion for summary judgment can only be granted when the moving party demonstrates: (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 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. Further, upon an appeal from a summary judgment, the reviewing court should look at the record in the light most favorable to the party opposing the motion. Williams v. First United Church of Christ (1974), 37 Ohio St. 2d 150. It is a well-established rule that judges, counsel, parties and witnesses are absolutely immune from civil suits for defamatory remarks made during and relevant to judicial proceedings. McChesney v. Firedoor Corp. (1976), 50 Ohio App. 2d 49. However, in McChesney, supra, the court specifically found that the rule of absolute immunity, as it applies to grievances -8- filed against a lawyer, arises out of an attorney-client rela- tionship. The absolute privilege does not apply in situations where a dissatisfied litigant complains to the bar association about the conduct of an attorney who did not represent him. McChesney, supra, at 54. The court, in McChesney, supra, reasoned that to grant an absolute privilege in such cases "would open the door to all manner of unjustified complaints to those who have no interest in the matters." Id. Based upon the holding set forth in McChesney, supra, we find that appellee was not entitled to absolute immunity from alleged libelous and/or slanderous statements made in the grievance filed with the Cuyahoga Bar. In the instant case, the evidence consisted of appellee's grievance filed with the Cuyahoga Bar and the various exhibits attached to the respective parties' briefs pertaining to summary judgment. Construing the evidence in the light most favorable to appellant, we find that there existed genuine issues of material fact as to whether appellee's statements were libelous and/or slanderous and whether there was a publication of the statements. Thus, we conclude that appellee was not entitled to a judgment as a matter of law and that the trial court erred in granting his motion for summary judgment. Appellant's assignment of error is well taken and is sustained. -9- Trial court judgment is reversed and this case is remanded for further proceedings consistent with this opinion. Trial court judgment is reversed and remanded. Trial court judgment is reversed and remanded. This cause is reversed and remanded for further proceedings consistent with this journal entry and opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. 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. Exceptions. DYKE, P.J., HARPER, J., CONCUR LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .