COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68076 : IRENE PANDI : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : MARC GLASSMAN, INC. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT MAY 11, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 262507 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: JOHN WOOD, ESQ. JACK SCHULMAN, ESQ. 4488 Monticello Blvd. Schulman, Schulman & Meros South Euclid, Ohio 44143 1700 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J: Irene Pandi, plaintiff-appellant, appeals the trial judge's granting summary judgment in favor of Marc Glassman, Inc., defendant-appellee. Pandi assigns the following errors for our review: I. APPELLANT ASSIGNS AS ERROR I THE FAILURE OF THE TRIAL COURT TO GRANT DEFAULT JUDGMENT FOR FAILURE OF THE DEFENDANT TO EITHER TIMELY ANSWER, MOVE FOR AN EXTENSION OF TIME IN WHICH TO ANSWER, OR SET FORTH EXCUSABLE NEGLECT. II. APPELLANT ASSIGNS AS ERROR II THE FAILURE OF THE TRIAL COURT TO GRANT DEFAULT JUDGMENT WHERE THE DEFENDANT FILED A LATE ANSWER WITHOUT MOVING FOR LEAVE TO PLEAD OR SETTING FORTH EXCUSABLE NEGLECT. III. APPELLANT ASSIGNS AS ERROR III THE GRANT OF SUMMARY JUDGMENT IN FAVOR OF DEFENDANT WHERE THE DEFENDANT FAILED TO OFFER EVIDENCE THAT ESTABLISHED UNDISPUTED FACTS AND THE COURT RULED IN CONTRAVENTION OF PLAINTIFF'S EVIDENCE. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial judge. The apposite facts follow. On December 8, 1992, Irene Pandi was employed by Marc Glassman, Inc. (Marc's) as a cashier supervisor at its Cedar Center discount store. Stephanie Williams, a former employee, approached the cash register where Pandi was working. Pandi gave her the employee discount unaware that she was no longer an employee. The discount totalled four dollars. Marc's provided to its cashier supervisors a list of employees who were eligible for the discount. When Pandi rang up Williams' purchase, she did not use the list because she knew Williams from -3- working with her in the past. Furthermore, Pandi claimed the list was often inaccurate and no policy existed that required her to use it. After Pandi rang up Williams' purchase, she was called into the security office. Two security officers and the store manager confronted Pandi about giving Williams the employee discount. She explained to them she was unaware Williams no longer worked for Marc's and admitted to her mistake. In the meeting, the security officers and manager accused her of blatantly disregarding company policy and of being in collusion with Williams to take the discount. She denied the charges and was sent back to her register. Later that day, she was dismissed from her employment with Marc's. Pandi applied to the Ohio Bureau of Employment Services for unemployment benefits. The Bureau denied Pandi benefits, and she applied for reconsideration, but unemployment benefits were denied again. Pandi appealed the decision to the Bureau's Board of Review, but the Board of Review affirmed the decision of the Bureau, and unemployment benefits were denied. On December 8, 1993, Pandi filed a complaint against Marc's. Marc's moved for a more definite statement, which was granted. On January 31, 1994, Pandi filed her first amended complaint. On February 23, 1994, Pandi moved for a default judgment. On February 25, 1994, Marc's moved to dismiss the action under Civ.R. 12(B)(6). The motion for default judgment was denied and the motion to dismiss was denied. In its March 14, 1994, journal entry denying -4- the motion to dismiss, the trial judge indicated she would entertain a summary judgment motion after an answer was filed and discovery was completed. On March 21, 1994, Marc's filed an answer. Pandi moved for default judgment a second time and the motion was denied. Marc's moved for summary judgment, the motion was granted, and this appeal followed. In her first and second assignments of error, Pandi argues the trial court erred in denying her motion for a default judgment. She argues Marc's failed to timely file an answer to her first amended complaint and the trial court erred in allowing Marc's to file an answer without leave of court. We disagree. The standard of review for default judgments is plenary. Civ.R. 55(A) provides: "(A) Entry of judgment. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply in writing or orally to the court therefor;***." "***A default judgment is proper when, and only when, a defendant has not contested the plaintiff's allegations by pleading or 'otherwise defend[ing]' such that no issues are present in the case." Reese v. Proppe (1981), 3 Ohio App.3d 103, 105. See, also, Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d 118. Thus, by filing a pre-trial motion under Civ.R. 12, a defendant has entered a plea or otherwise defended the case. See Gibbons v. Price (1986), 33 Ohio App.3d 4, 10 (provided party otherwise defends within the meaning of Civ.R. 55(A) by filing motion to strike). -5- In the case sub judice, Pandi filed a complaint against Marc's, and Marc's responded in a timely manner by moving for a more definite statement under Civ.R. 12(E). By moving for a more definite statement, Marc's otherwise defended the action within the meaning of Civ.R. 55. See Gibbons, supra. After the motion for a more definite statement was granted by the trial court, Pandi filed a first amended complaint. Marc's moved to dismiss the case under Civ.R. 12(B)(6) thirteen days beyond the deadline for responsive pleadings to the first amended complaint without leave of court. Although the motion to dismiss and the subsequent answer were not timely, the case was contested when Marc's moved a more definite statement in response to the original complaint. Thus, where a party has otherwise defended against a claim by moving for a more definite statement, the case is contested, and a motion for default judgment as a matter of law cannot be granted. Pandi also raises the issue of whether Marc's answer was properly accepted by the trial court. The standard of review for motion to leave to answer is abuse of discretion. Gravill v. Parkhurst (1985), 27 Ohio App.3d 100, 103. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. In its March 14, 1994 journal entry denying the motion to dismiss, the trial court implicitly grants leave for Marc's to file an answer and move for summary judgment. Although Marc's did not -6- specifically file a motion for leave to file an answer, there is evidence of excusable neglect in the record. In its brief in opposition to default judgment, Marc's clearly states it did not receive actual notice of the trial court's ruling on its motion for a definite statement until February 23, 1994 which was past the time to file an answer or otherwise defend against the first amended complaint. Because sufficient evidence exists of excusable neglect in the record, we find the trial court did not abuse its discretion in allowing Marc's to file an answer. Accordingly, Pandi's first and second assignments of error are not well taken. In her third assignment of error, Pandi argues the trial court erred in granting summary judgment in favor of Marc's. We disagree. The standard of review for an appeal from summary judgment is plenary. This court applies the same test as the trial court, which is set forth in Civ.R. 56, and we evaluate the record according to Civ.R. 56. Civ.R. 56 specifically provides before summary judgment may be granted it must be determined that: "(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 conclu- sion, 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. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of -7- material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmovant. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. Under Civ.R. 56(E) "a nonmovant may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. Summary judgment in this case involves a cause of action for defamation. Defamatory statements that injure a person in his trade or profession, which would otherwise constitute defamation per se, are not actionable per se when the communicator has a qualified privilege. Smith v. Klein (1985), 23 Ohio App.3d 146. See, e.g. Hahn v. Kotten (1975), 43 Ohio St.2d 237. "Conditional or qualified privilege is based on public policy. It does not change the actionable quality of the words published, but merely rebuts the inference of malice that is imputed in the absence of privilege, and makes a showing of falsity and actual malice essential to the right of recovery." "A qualified or conditionally privileged communication is one made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest or duty of a privileged occasion and in a manner and under circumstances fairly warranted by the occasion and duty, right or interest. The essential elements thereof 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." (Emphasis added.) -8- Hahn at 244, quoting 50 American Jurisprudence 2d 698, Libel and Slander, Section 195. Accordingly, all statements made in the workplace are not necessarily actionable per se. The threshold question is whether the statements used in discharging the employee are qualifiedly privileged. A qualified privilege includes communications of an employer as to the reasons for the discharge of a former employee to that employee's prospective employer. Rinehart v. Maiorano (1991), 76 Ohio App.3d 413, 421. "Only where the statements are made maliciously is the privilege destroyed." Id. In this case, only one statement was made on behalf of Marc's by the manager of the Cedar Center store. In his report, he stated the following: "***Irene Pandi did not check the employee check list [and] gave [Williams] her discount. ***This is against company procedures [and] policy. This is a [blatant] disregard of company policy on employment discounts and is immediate termination." [sic] Because this statement was made in an internal report and purely for the purpose of documenting the reason for Pandi's dismissal, it is qualifiedly privileged. Having established the existence of a qualified privilege, our analysis turns to the question of whether there was evidence of actual malice. If the evidence clearly demonstrates that the defendant's statements were qualifiedly privileged, then the plaintiff has the additional burden of showing that the defendant exceeded the privilege by acting with "actual malice." Evely v. Carlon Co. (1983), 4 Ohio St.3d 163, 166. In the context of a -9- defamation action, a person acts with actual malice when they act "with knowledge that the statements are false or with reckless disregard of whether they were false or not." Hahn at paragraph two of the syllabus. In this case, Pandi fails to produce any evidence of actual malice. Pandi simply argues she made an honest mistake by giving the discount to a former employee. She also claims the policy of checking the list was not mandatory, but was only used when the cashier supervisor did not know the employee. While a conflict exists between Pandi and Marc's as to whether the policy of checking the list was mandatory, it does not rise to the level of a material fact. If, in fact, the policy of checking the employee discount list was not mandatory, that fact alone does not demonstrate the store manager acted with malice in the internal company report explaining Pandi's discharge. Pandi also argues defamation occurred because she was forced to republish the alleged slanderous remarks when she was seeking unemployment insurance. Under R.C. 4141.21, information furnished to the Ohio Bureau of Employment Services for the purpose of obtaining unemployment insurance is privileged information, and not admissible in a separate civil action. Pasanovic v. American General Finance (Sept. 17, 1992), Franklin App. No. 92AP-651, unreported. See, also, Wiggins v. Ohio Bur. of Emp. Serv. (1992), 80 Ohio App.3d 829. Thus, all claims premised on the information furnished to the Ohio Bureau of Employment Services must fail. -10- Accordingly, summary judgment was properly granted in favor of Marc's, and Pandi's third assignment of error is not well taken. Judgment affirmed. -11- It is ordered that Appellee recover of Appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. HARPER, J., and NAHRA, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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 journaliza- .