COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61017 M. J. DICORPO, INC., ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : ROBERT E. SWEENEY : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 3, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CP-180282. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: Steven J. Miller, Esq. Robert A. Goodman, Esq. Goodman, Weiss, Freedman 100 Erieview Plaza, 27th Floor Cleveland, OH 44114 For Defendant-Appellee: Burt W. Fulton, Esq. Bulkley Building, 7th Floor 1501 Euclid Avenue Cleveland, OH 44115 -2- DAVID T. MATIA, C.J.: Plaintiffs-appellants Michael J. DiCorpo, Inc., et al. appeal the judgment of the Cuyahoga County Court of Common Pleas granting summary judgment to defendant-appellee Robert E. Sweeney & Associates Company, L.P.A. Based on the reasons adduced below, we affirm in part, reverse in part and remand to the trial court. STATEMENT OF THE FACTS Michael J. DiCorpo is the sole owner of Gupta, DiCorpo, Dykman, Inc. (hereinafter DiCorpo), a consulting firm. In January 1988, DiCorpo was hired by defendant-appellee Robert E. Sweeney and his law firm, Robert E. Sweeney and Associates Company, L.P.A. (hereinafter Sweeney). At that time, DiCorpo assisted with inter alia the relocation, construction, and decoration of Sweeney's law offices and the installation of computer equipment. Both parties agree that these services were billed and paid at an hourly rate. Appellants DiCorpo allege that in the summer of 1989, appellee Sweeney and another law firm, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A. (hereinafter Climaco firm) hired appellants to arrange a merger of the two law firms. Appellants DiCorpo allege that on August 23, 1989, appellants and the two firms entered into an "oral agreement" that appellants would receive "a fee of 2% (the "Compensation Agreement") of the ultimately agreed-upon consideration to Sweeney for the merger, to be paid equally (1%) by each of the two law firms." -3- Sweeney denies that he agreed to pay DiCorpo a fee calculated other than on an hourly rate. A written "Letter of Intent to Merge," however, provided for a 2% commission "upon completion of the deal." The "Letter of Intent" begins with these words: This is a basic letter of intent to merge the practice of Robert E. Sweeney & Associates Co., L.P.A. (RESCO) into the practice of Climaco, Climaco, Seminatore, Lefkowitz & Garafoli (sic) (CCSL&G) . . . . and ends with these words: This letter is meant as an agreement to principles and it will be followed by a definitive agreement within fifteen days of signing. The parties to that basic "Letter of Intent" signed it, and under their signatures appear these words: The consulting firm of Gupta, DiCorpo & Dykman will receive a fee of two percent upon completion of this deal, one-half payable by each firm. Appellants DiCorpo allege that the signed "Letter of Intent" formed a binding contract of merger between the two law firms entitling appellants to the 2% commission. Appellee Sweeney alleges that the signed "Letter of Intent" did not create a binding contract, since a more definitive agreement was to follow. The merger, in fact, never occurred. Appellants DiCorpo also filed a supplemental complaint based on a defamation claim. Appellants' defamation claim was predicated upon a newspaper article in the Plain Dealer which reported that Sweeney had filed an affidavit with the -4- Prosecutor's Office which stated that DiCorpo had carried on a close and vigorous effort with one Mr. Kelley to persuade Sweeney to merge with Climaco. Appellants DiCorpo claimed the affidavit to be defamatory because Mr. Kelley had been accused of wrongfully taking money from Sweeney's practice, therefore the affidavit improvidently impugned appellants by linking DiCorpo with Kelley. STATEMENT OF THE CASE On December 1, 1989, appellants DiCorpo dba Gupta, DiCorpo & Dykman as sole owner, filed a complaint in the Cuyahoga County Court of Common Pleas, against appellee Robert E. Sweeney & Associates Co., L.P.A., Robert P. Sweeney, William A. Sweeney, Mark Wintering, and Patricia Sorcek. The original complaint sought payment of a contractual consulting fee and damages for breach of contract (counts one and two), unjust enrichment (counts three and four), invasion of privacy (count five), interference with business relations (count six), and tortious interference with contract (count seven). Appellee filed his joint answer, generally denying all allegations. Then on March 2, 1990, appellants filed a supplemental complaint against Sweeney and Robert E. Sweeney & Associates Co., L.P.A. The supplemental complaint sought damages for defamation (count eight), negligent or intentional infliction of emotional harm (count nine), and breach of invasion of privacy (count ten). On August 13, 1990, appellee filed amended answers to the original complaint and answers to the supplemental complaint. -5- On June 29, 1990, appellee filed a motion for summary judgment on the original complaint. On August 17, 1990, appellee filed a motion for summary judgment on the supplemental complaint. On November 16, 1990, the trial court filed its summary judgment and opinion, granting summary judgment for appellee on all counts and thereby dismissing the entire case. On December 14, 1990, appellants timely appealed the trial court's judgment. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN REJECTING ON SUMMARY JUDGMENT, AS A MATTER OF LAW, PLAINTIFFS' CONTRACT AND UNJUST ENRICHMENT CLAIMS, WHEN PLAINTIFFS HAD INTRODUCED SUFFICIENT EVIDENCE OF AN ENFORCEABLE ORAL CONTRACT, OF SERVICES RENDERED UNDER THAT CONTRACT, AND OF THEIR ENTITLEMENT TO COMPENSATION TO MAKE EACH A FACTUAL QUESTION REQUIRING TRIAL. Appellants argue in their first assignment of error that the trial court erred in granting appellee's motion for summary judgment. Specifically, appellants argue that there were genuine issues of material fact as to whether an oral contract concerning a two percent fee commission existed between appellee and appellants. This assignment of error is well taken. ISSUE: WHETHER SUMMARY JUDGMENT WAS PRECLUDED BY WAY OF GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER AN ORAL CONTRACT EXISTED BETWEEN THE PARTIES. A. THE COMPLAINT Appellants assert that the trial court erred in its summary judgment and opinion. Appellants argue that the trial court -6- erred in granting summary judgment based on the written "Letter of Intent" and the fee statement attached to that "Letter of Intent." Appellants assert that what was at issue in their complaint against appellee was not the enforcement of the written document regarding the two percent fee commission, but rather, whether or not an oral contract regarding the two percent fee commission between appellants and appellee was enforceable. Appellants DiCorpo assert that their complaint for relief was not solely based on the written "Letter of Intent" in their original complaint against appellee. Appellants contend that the trial court overlooked appellee's complaint in regards to the oral contract. Appellants refer to the enforcement of the "Compensation Agreement" stated in line 14 of the original complaint. Appellants claim that this "Compensation Agreement" was the oral contract made between the parties on August 23, 1989, before the "Letter of Intent" was written. Reviewing appellants' complaint, we note that appellants alleged in count one of the complaint that the "Compensation Agreement" entered into on August 23, 1989 was separate from the written "Letter of Intent" of November 1, l989. Appellants alleged, however, in count one, that both the oral "Compensation Agreement" and the written "Letter of Intent" was breached by appellee thus causing their injury. Appellants DiCorpo aver that appellants introduced sufficient evidence of the "Compensation Agreement" as an enforceable oral -7- contract regarding the "2% fee commission." To wit, appellants DiCorpo testified in their deposition dated July 24, 1990: Was there any discussion on the speaker phone with John Climaco about this being a contingency fee percentage or commission transaction as opposed to an hourly rate? A. No. Q. On August 23, you came back and met with Mr. Sweeney? A. Yes. Q. Was that alone? A. Yes. Q. What transpired on August 23? A. I explained to him that we would be doing the deal on a two-percent basis, two percent of whatever I got for him on the deal against our hourly fees, and that I had discussed that with Mr. Climaco, and he had agreed to that. Q. I take it that you did, in fact, discuss this proposal with Mr. Climaco before meeting with Mr. Sweeney. A. Excuse me? Q. Before you came back to Mr. Sweeney's office on August 23, you had contacted John Climaco and run (sic) this proposal past him[?] A. Yes. Q. Was that by phone or in person with John Climaco? A. It was by phone. Q. Earlier in the morning? A. Yes. -8- Q. What did you discuss with John Climaco earlier in the morning on August 23? A. That, if we were going to assist both firms, we would be losing one of our clients if we completed this deal, and they were both very important clients to us, and that because of that factor, we wished to do the deal on a two percent against our hourly rate. He agreed that that would be satisfactory to him as long as it was satisfactory to Mr. Sweeney. Q. You have used the phrase, two percent against our hourly rate, and it would be based upon, I believe you said, "whatever I got for him." A. Yes. (Tr. 102-103.) Thus, appellants DiCorpo contend that it is this oral agreement, created by meeting with Sweeney on August 23, 1989 and by telephone conversation with John Climaco on that same day which formed the basis of the "Compensation Agreement" and thereby the oral contract between appellants, appellee Sweeney and Climaco. The trial court, in its opinion, properly stated that appellants, as non-parties, had no standing to sue on the written "Letter of Intent" and the "Addendum" as to whether or not an enforceable contract had been created by those documents. The trial court, however, did not consider whether a genuine issue of material fact existed in regards to the alleged oral contract. Rendering a summary judgment requires a tripartite demonstration (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment -9- as a matter of law; and (3) 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, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting a summary judgment. A motion for summary judgment forces the non-moving party to produce evidence on any issue for which that party bears the burden of production at trial. Celotex v. Catrett (1986), 477 U.S. 317, 322-323. On review of the case sub judice, we find that appellants submitted substantial evidence of the alleged oral contract to create a genuine issue of material fact as to is existence. Appellants attached the affidavits of Michael DiCorpo and Michael Climaco to its brief in opposition to the motion for summary judgment. The affiant in each affidavit stated that an oral agreement had been reached in regards to a "Compensation Agreement." Appellee Sweeney denied the existence of an oral contract regarding any compensation other than an hourly rate for services rendered. We note, however, that appellee's brief in support of defendants' motion for summary judgment focused on the November 1, 1989, "Letter of Intent". Appellee submitted substantial evidence supporting their argument that their "Letter of Intent" -10- did not form a binding contract between the parties. Appellee, however, denied the existence of an oral agreement between the parties regarding the two percent commission, but offered no other evidence on that issue. While Celotex says that a moving party does not have to support its motion with affidavits negating the opponent's claims, Celotex also plainly states that "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine isssue of material fact.'" Celotex, supra, at 323. In the within case, both the appellee and the trial court focused on the written "Letter of intent" and did not address the question whether an enforceable oral contract regarding the two percent commission had been created and existed between appellants and appellee. The trial court noted that appellants and appellee Sweeney "had an oral agreement for remuneration based upon an hourly rate pursuant to statements submitted by plaintiffs to defendant Robert E. Sweeney on which he has already paid a substantial amount of money in fees." The trial court, however, did not find any additional consideration for the two percent fee. Robert E. Sweeney submitted an affidavit which detailed the hourly compensation arrangement between appellants and appellee. Sweeney submitted substantial evidence in the way -11- of billings and invoices to substantiate the existence of the hourly compensation. Sweeney also attached to his motion for summary judgment, a letter dated August 1, 1989, in which DiCorpo agreed to "begin the new policy of bill reduction" and work on only specific projects with an estimate of fees. We note, however, that this letter dated August 1, 1989, predated the alleged oral "Compensation Agreement" and therefore, was not necessarily inconsistent with that letter. Reviewing the evidence submitted to the trial court in the form of the complaint, the pleadings, the briefs, the affidavits, discovery products, and the alleged contracts both written and oral which are the basis for this case, construing the evidence most strongly in favor of the appellants, we hold that there were genuine issues of material fact in regards to whether an oral contract existed between the parties, and therefore summary judgment on that issue was precluded. See Century 21 Fixler Realty, Inc. v. Gateway Plaza, et al. (1990), Cuyahoga App. No. 57190, unreported (defendants' denial of liability pursuant to a contract implied in fact was insufficient to refute plaintiff's allegations of liability on a quasi-contract to prevent unjust enrichment). B. THE ENFORCEABILITY OF THE FEE PARAGRAPH Subsequent to the trial court's determination that appellants had no standing to contest whether the "Letter of Intent to Merge" actually constituted a contract, the trial court determined that the fee paragraph following the "Letter of -12- Intent" was too speculative to determine the amount due appellants should the paragraph prove to be enforceable. The court reasoned: "[t]his court is unable to find that plaintiff is entitled to any fee whatsoever based upon that paragraph.... What does defeat this paragraph, however, is its complete uncertainty." The court reasoned that the two percent figure was too speculative and incapable of determination to to be enforceable. We disagree. We emphasize that interpretation of a written agreement is, in the first instance, a matter of law for the court, and should be submitted to the jury only when provisions of the contract are ambiguous. Seringetti Constr. Co. v. Cincinnati (1988) 51 Ohio App.3d 1. We ascertain that appellants submitted evidence in the form of deposition testimony, and in their pleadings and briefs which presented a question for the trier of fact as to exactly what amount the two percent pertained. Notwithstanding the trial court's opinion that the two percent was too speculative and uncertain to be enforceable, we find that the issue was one squarely to be determined, if possible, by the trier of fact. The trier of fact is to determine the credibility of witnesses and the weight to be given the evidence. State v. DeHaas (1967), 10 Ohio St.2d 230. C. SUMMARY JUDGMENT PRECLUDED In conclusion, the trial court erred in granting appellee's motion for summary judgment. The original complaint, the pleadings, affidavits, discovery products, and the alleged oral -13- and written contracts and agreements in the within case supports appellants' assertion that genuine issues of material fact existed as to whether or not an oral contract existed between the parties regarding a two percent commission fee. Further, we find that genuine issues of material fact existed in regards to the amount due appellants. Therefore, summary judgment was precluded. Since, our disposition of Assignment of Error I reverses the trial court's summary disposition, the issue of unjust enrichment is moot at our level. Accordingly, Assignment of Error I is overruled. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN REJECTING ON SUMMARY JUDGMENT, AS A MATTER OF LAW, PLAINTIFFS' DEFAMATION-RELATED CLAIMS, WHEN THE TRIAL COURT HAD DENIED PLAINTIFFS PROPER DISCOVERY OF THEIR CLAIMS, AND PLAINTIFFS HAD NONETHELESS INTRODUCED SUFFICIENT EVIDENCE OF THE PUBLICATION OF FALSE AND DEFAMATORY STATEMENTS ABOUT THEM, MADE WITH ACTUAL MALICE, TO RAISE FACTUAL QUESTIONS REQUIRING TRIAL, AND TO COMPEL AS WELL RECOGNITION THAT THE "FALSE LIGHT THEORY" OF RECOVERY APPLIES HERE. Appellants argue in their second assignment of error that the trial court erred in granting appellee's motion for summary judgment on appellants' defamation claims. Specifically, appellants argue that they introduced sufficient evidence to sustain genuine issues of material fact as to whether a defamation cause of action existed, therefore, precluding summary judgment on the issue. This assignment of error is not well taken. -14- ISSUE: WHETHER THE SWEENEY AFFIDAVIT PROVIDED GROUNDS FOR AN ACTIONABLE DEFAMATION CLAIM On February 11, 1990, an article appeared in the Plain Dealer reporting that Robert Sweeney had prepared a sworn affidavit (the "Sweeney affidavit") and submitted it to Cuyahoga County Prosecutor John T. Corrigan. In the Sweeney affidavit, Sweeney alleged that a member of his law firm, a Michael Kelley, had obtained Sweeney firm funds without authorization. The affidavit further contended that Michael Kelley and Michael DiCorpo "carried on a very close and vigorous effort" to persuade Robert Sweeney to merge with Climaco. The Sweeney affidavit also stated that Kelly was "abetted and aided" by one Michael DiCorpo. Appellants DiCorpo argue that it is these statements from the Sweeney affidavit rather than the published newspaper report which forms the basis of their defamation claim. Defamation may be defined as a false publication causing injury to a person's reputation, or exposing him to public hatred, contempt, ridicule, shame or disgrace, or affecting him adversely in his trade or business. Whether a publication is defamatory on its face (defamatory per se), or is capable of being interpreted as defamatory (defamatory per quod), are questions of law for the trial court. Matalka v. Lagemann (1985), 21 Ohio App.3d 134. In the case sub judice, the trial court opined that what was stated in the Sweeney affidavit was not actionable as defamatory "since any citizen is entitled to file an affidavit with the -15- County Prosecutor under a qualified privilege which can be defeated only by a showing of malice." We agree with the trial court that the alleged defamatory statements contained in the affidavit were not actionable, but we find that the contents of the affidavit were protected under an absolute privilege. Costanzo v. Gaul (1980), 62 Ohio St.2d 106; Surace v. Wuliger (1986), 25 Ohio St.3d 229 (absolute privilege for defamatory allegations in a pleading); Scanlon v. Caskey (1990), 53 Ohio App.3d 104 (absolute privilege for complaint filed with bar association). "As a matter of public policy, under the doctrine of absolute privilege in a judicial proceeding, a claim alleging that a defamatory statement was made in a written pleading does not state a cause of action where the allegedly defamatory statement bears some reasonable relation to the judicial proceeding in which it appears." In Scanlon, appellee filed a written "Request for Investigation" with the Cincinnati Bar Association, alleging appellants' breach of legal ethic. As a result, appellants filed a defamation suit against appellee. The trial court found the proceeding before the Bar Association was quasi-judicial and therefore granted an absolute privilege to the "Request." Herein, appellee Sweeney submitted an affidavit to the Prosecutor's Office, certainly a judicial proceeding by definition. Therefore, since we find that the statements contained in the Sweeney affidavit were relevant to the judicial -16- proceeding in which it appeared, we hold summary judgment was properly granted on appellants' defamation claims. CONCLUSION In light of the foregoing, we hold that the trial court erred in part in granting appellee's motion for summary judgment. The record indicates that appellants offered substantial evidence to support a genuine isue of material fact in regards to whether the oral "Compensation Agreement" existed between appellants and appellee. As noted in Assignment of Error I, a review of the trial court's summary judgment and opinion indicates that the trial court made its determination pursuant to review of the written "Letter of Intent" and "Addendum" and accompanying "2% fee paragraph." We, therefore, hold that appellee's denial of liability pursuant to the written contract was insufficient to refute appellants' allegations of liability on the oral contract. Century 21 Fixler Realty, Inc. With respect to appellants' Assignment of Error II, we affirm the trial court, but stipulate that Sweeney's affidavit submitted to the County Prosecutor's Office was subject to an absolute privilege in connection with a judicial proceeding. Scanlon v. Caskey. Accordingly, the trial court is affirmed in part as to Assignment of Error II, reversed in part as to Assignment of Error I. This matter is remanded for further proceedings consistent with the opinion herein. -17- This cause is affirmed in part, reversed in part, and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellants and said appellee equally share the 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. BLACKMON, J., CONCURS; FRANCIS E. SWEENEY, J., CONCURS IN PART AND DISSENTS IN PART (WITH DISSENTING OPINION). DAVID T. MATIA CHIEF JUSTICE 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61017 M. J. DiCORPO, INC., et al : : Plaintiff-appellants : : vs. : DISSENTING OPINION : ROBERT E. SWEENEY : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 3, 1992 FRANCIS E. SWEENEY, J., CONCURS IN PART AND DISSENTS IN PART: I respectfully dissent from the majority's decision to reverse the trial court's grant of summary judgment based on the majority's finding that appellant/Mr. DiCorpo's deposition testi- mony constituted "substantial evidence" of the existence of an oral "Compensation Agreement" between the parties. A motion for summary judgment forces the non-moving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108. In the present case, appellants contend that suffi- cient evidence of an oral "Compensation Agreement" regarding the - 2 - "2% fee commission" exists based on Mr. DiCorpo's meeting with Mr. Sweeney on August 23, 1989 and by the telephone conversation with John Climaco on that same day. At his deposition, Mr. DiCorpo repeatedly testified that his only explanation to Mr. Sweeney of the amount of his commission was "two percent of whatever I got for him." Since the merger was never completed, and since Mr. Sweeney could have received nothing even if the merger had been completed, I believe the appellant's discussions of the terms of his fee of two percent was so indefinite as to make any alleged oral agreement illusory and unenforceable. See, Century 21 v. McIntyre (1980), 68 Ohio App.2d 126. Accordingly, I would affirm the trial court's judgment grant-ing appellee's motion for summary judgment as no genuine issue of material fact remains to be litigated as a matter of law. .