COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67407 : REBECCA L. CORRADI : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : EMMCO CORPORATION, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT FEBRUARY 15, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 224180 JUDGMENT: Affirmed in part, Reversed in part. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: MARC N. SILBERMAN, ESQ. THOMAS H. BARNARD, ESQ. 24800 Chagrin Blvd. TIMOTHY J. DOWNING, ESQ. The Gundersen Bldg. Ulmer & Berne Beachwood, Ohio 44122 1300 East Ninth St., Suite 900 Cleveland, Ohio 44114 -2- PATRICIA ANN BLACKMON, J.: Plaintiff-appellant Rebecca L. Corradi appeals a directed verdict in favor of defendants-appellees, Emmco Corporation and David Heffelman, and a jury verdict in favor of defendant- appellee, Irene Soltis. Corradi assigns the following errors for our review: I. THE CONDUCT OF THE TRIAL JUDGE DEMONSTRATED BIAS, PREJUDICE AND HOSTILITY TOWARDS APPELLANT THEREBY PREVENTING HER FROM OBTAINING A FAIR TRIAL. II. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT EXCLUDING CERTAIN RELEVANT AND ADMISSIBLE EVIDENCE WHICH PREVENTED HER FROM OBTAINING A FAIR TRIAL. III. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY REFUSING TO PERMIT ONE OF HER KEY WITNESSES TO TESTIFY AT TRIAL AND BY SEVERELY LIMITING THE TESTIMONY OF ANOTHER PRIMARY WITNESS CALLED BY APPELLANT. IV. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY GRANTING A DIRECTED VERDICT FOR APPELLEES AND SPECIFICALLY FOR APPELLEE, EMMCO CORPORATION. V. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY REFUSING TO PERMIT HER TO FULLY AMEND HER COMPLAINT TO CONFORM TO THE EVIDENCE PRESENTED PURSUANT TO CIV.R. 15(B). VI. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT IN ITS INSTRUCTIONS TO THE JURY MISSTATING THE ELEMENTS OF DEFAMATION AND REFUSING TO INSTRUCT THE JURY ON SLANDER PER SE. Having reviewed the record of the proceedings and the arguments presented by the parties, we affirm in part and reverse in part. The apposite facts follow. -3- Rebecca Corradi was employed by EMMCO Corporation from November 21, 1988 to January 15, 1991. Emmco hired her as their business manager of their Columbus Park Apartments in Bedford Heights; later she became their property manager. As property manager, she was responsible for collecting and processing rent payments. Additionally, she was in charge of handling tenants' complaints and facilitating the repairs needed in the apartments. Her immediate supervisor was David Heffelman, Director of Residential Properties for EMMCO. In 1990, Corradi's relationship with Heffelman and her other superiors began to deteriorate. They complained because too much money was being spent on outside contractors for repairs that could have been done by in-house maintenance people. They complained particularly about the amount of work given to Danny Venturella as a plumbing contractor. On January 15, 1991, Heffelman had a private meeting with Corradi. In the meeting, he informed Corradi "EMMCO had decided to make a management change" and she should not take it personally. He then told her, "You can resign and have a letter of recommendation, or you can be terminated and take your chances." Corradi refused to resign. Upon leaving the office, Corradi told Mary Carpenter, she had just been fired. In a termination report form, Heffelman indicated the reason for her discharge was incompetence. When she arrived at her home she was told by her mother-in- law to call Irene Soltis. Irene Soltis was employed at the apartment building as office manager, and Corradi was her -4- supervisor. When she called, Soltis was extremely upset, crying, and told Corradi, "I can't work there if you are not going to be there, what am I going to do?" Corradi talked to Soltis on one subsequent occasion to make arrangements to pick up her last paycheck, drop off petty cash, and money collected from rental of the complex party room. Barbara Van Hala, a part-time employee, told Corradi that it was rumored that she was fired for receiving kickbacks from sub- contractors, particularly Venturella. Corradi said several others knew of the rumor. Upon learning of the rumor she felt ashamed, angry, and humiliated. Corradi's sisters-in-law, Sharon Banks and Beverly D'Ambrosia went to the rental office to visit Corradi. Banks was a tenant of Columbus Park Apartments at the time. Soltis informed Banks and D'Ambrosia that Corradi was fired because she was taking money from petty cash. Soltis also told Melissa Brearey, who was a mutual friend of Soltis and Corradi, that Corradi was discharged for removing carpeting and appliances from Columbus Park Apartments. Prior to Corradi's discharge, the management office of Columbus Park Apartments began receiving hang-up and threatening telephone calls. After Corradi was discharged, Soltis went to the Bedford Heights Police Department to report the harassing telephone calls. Soltis provided the police with Corradi's name as one of several possible suspects. The police contacted Corradi to discuss the allegations, but did not pursue an investigation. -5- In March of 1991, Corradi applied for the position of credit collections manager with Associated Estates Realty Corporation. She was referred to the company by her attorney and interviewed with the company's Comptroller, Regina Shaw. Shaw offered her the job, and she was to start Monday, the day after the interview. After the interview, she was sent to Associated's Human Resources department to pick-up the necessary paper work. Corradi completed the paperwork and returned it. Nan Zielenic was director of Human Resources for Associated; it was her responsibility to check references of prospective employees, but she had no independent recollection of doing so for Corradi. However, after Corradi turned in her paperwork including her references, she received a telephone call from Shaw rescinding the job offer. Corradi filed an action for defamation and intentional infliction of emotional distress against EMMCO, Heffelman, and Soltis. After discovery, the case proceeded to a jury trial before Judge James P. Kilbane. At the close of the plaintiff's case, the trial court entered a directed verdict in favor of EMMCO and Heffelman. The claims against Soltis were submitted to the jury. In their interrogatories the jury found Soltis made false statements and published the statements, but the statements did not cause any injury to Corradi's reputation. The jury entered a verdict in favor of Soltis. Corradi moved for a new trial. While the motion was pending, Corradi filed a notice of appeal. The motion was denied for want of jurisdiction, and this appeal followed. -6- Corradi's assignments of error will be addressed out of order in the interest of clarity. In her fourth assignment of error, Corradi asserts the trial court erred in granting a directed verdict in favor of EMMCO and Heffelman. Civ.R. 50(A)(4) provides when a motion for directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. See, also, Ramage v. Central Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97, 109. An action for defamation requires proof of "(1) an unprivileged communication; (2) false and defamatory language about another; and (3) requisite malice. A qualified privilege attaches to statements made within the scope of employment." Nichols v. Ryder Truck Rental, Inc. (June 23, 1994), Cuyahoga App. No. 65376, unreported. In her fourth assignment of error, Corradi makes several arguments. First, she argues the trial court erred in granting a directed verdict in favor of Heffelman. Mere allegations that rumors seem to reflect an employee's conversations with management are insufficient to establish management was responsible for publication of defamatory remarks. Turk v. Ohio Bell Telephone Co. (Mar. 22, 1990), Cuyahoga App. No. 56749, unreported. Rumors in and of themselves are not sufficient proof of a claim of defam- -7- ation. Ashcroft v. Mt. Sinai Medical Center (1990), 68 Ohio App.3d 359. The spreading of rumors or gossip is only actionable as defamation to the extent that the statements made were attributable to the defendant. See Cooper v. Foster (Feb. 14, 1989), Franklin App. No. 88AP-326, unreported. In this case, there was no evidence Heffelman made any defamatory statements about Corradi or spread any rumors. Thus, the trial court properly directed a verdict in favor of Heffelman. Secondly, Corradi argues the trial court erred in granting a directed verdict in favor of EMMCO because is was liable for the defamatory statements made by Soltis. Where an employee commits an intentional tort, it must be calculated to facilitate or promote the business for which that person is employed. "The employer/ principal is not liable for the independent, self-serving conduct of its employee/agent which does not so facilitate its business." Cooper v. Grace Baptist Church of Columbus, Ohio, Inc. (1992), 81 Ohio App.3d 728, 737 (where giving personal opinion outside scope of employment in defamation action). In this case, Soltis was employed by EMMCO and assumed some of the responsibilities of Corradi after Corradi was discharged. Her responsibilities did not include providing information regarding the reasons for Corradi's discharge from EMMCO and there is no evidence her remarks tended to "facilitate or promote" EMMCO's business. Id. Accordingly, Soltis was acting outside the scope of her employment, and therefore, the trial court properly directed a verdict in favor of EMMCO. -8- In her first assignment of error, Corradi asserts she was denied a fair trial because the trial judge demonstrated bias, prejudice, and hostility toward her. "A trial judge is presumed not to be biased or prejudiced, and the party alleging bias or prejudice must set forth evidence to overcome the presumption of integrity." State v. Wagner (1992), 80 Ohio App.3d 88, 93; citing State v. Richard (Dec. 5, 1991), Cuyahoga App. No. 61524, unreported. The existence of prejudice or bias against a party is a matter that is peculiarly within the knowledge and reflection of each individual judge and is difficult to question unless the judge specifically verbalizes personal bias or prejudice toward a party. In re: Adoption of Reams (1989), 52 Ohio App.3d 52, 59. Corradi again advances several arguments in her first assign- ment of error. First, she argues the trial judge demonstrated open, blatant hostility and bias toward William Corradi. William Corradi is the husband of Rebecca Corradi and a special Cleveland Police Officer employed at Cleveland House of Corrections. During direct examination of William Corradi, when he was asked what shift he worked for the Cleveland Police Department, Judge James P. Kilbane interceded and said, "Wait. Since I was a policeman of the Cleveland Police Department, he is not a member of the Cleveland Police Department. I have got to protect them." Corradi argues the trial judge's comment was prejudicial. "[A] trial judge has a duty to see that the truth is developed and should not hesitate to pose a proper, pertinent, and even- handed question when justice requires." Akron-Canton Waste Oil, -9- Inc. v. Safety-Kleen Oil Serv., Inc. (1992), 81 Ohio App.3d 591, 610. See, also, State v. Johnston (Dec. 15, 1993), Summit App. No. 16137, unreported. Nonetheless, a trial judge's participation by questioning or comment must be "scrupulously limited" to prevent the court from indicating to the jury, "consciously or unconsciously," its opinion as to the credibility of the witnesses. State, ex rel. Wise, v. Chand (1970), 21 Ohio St.2d 113 at para- graph three of the syllabus. If the intensity, tenor, range and persistence of the trial court's questions or comments can reasonably indicate to the jury the court's opinion as to the credibility of the witness or the weight to be given to his testimony, the interrogation is prejudicially erroneous. Id. at paragraph four of the syllabus. In this case, the comment of the trial judge evinces a strong feeling for the Cleveland Police Department. Nonetheless, the trial judge's intemperate comment does not in itself indicate bias, See Wagner at 94. Also, no other evidence exists that would tend to show prejudice against this witness. Albeit a minor point in this case, the clarification of the witness' occupation was a proper subject of comment. Thus, this court must conclude the jury was not prejudiced by the trial judge's comments. Corradi next argues the trial judge showed hostility and bias toward Regina Shaw as a plaintiff's witness. During the voir dire of Shaw outside the presence of the jury, the trial judge interrogated her as follows: THE COURT: I know you're a friend -10- MS. SHAW: No, I'm not a friend, Your Honor. I don't even know them from Adam. I interviewed Rebecca Corradi one time. That's the only time I ever met the woman. THE COURT: I'm talking about with her attorney. MS. SHAW: I'm not friends with her attorney. I was talking to him about a statement. I'm not friends of anybody here. THE COURT: I don't imply that your testimony is colored, but there is no testimony that MS. SHAW: I just feel like there's a lot of facts here that are not going to get out, 'cause of the position MR. SILBERMAN: Ms. Shaw, could you tell the Court how I came to refer Ms. Corradi to you. THE COURT: I'm satisfied that you're an attorney, and that's why you referred her. But, on the matter of the voir dire, you can't establish anything in this particular case. I so rule. Call your next witness. Call the jury in. You're excused. The trial judge's questioning of whether Shaw was a friend of plaintiff's counsel was clearly a biased, improper interrogation into the credibility of a witness. Nevertheless, the interrogation took place outside the presence of the jury; therefore, it was not prejudicial. The matter of whether Shaw should have been permitted -11- to testify will be fully addressed in response to Corradi's third assignment of error. Corradi next argues the trial judge made derogatory comments reflecting upon the integrity of plaintiff's counsel by referring to him as "Thomas Shaughnessy." The four separate occasions during trial in which the reference was made were as follows: Q: So this meeting was unusual? A: I thought MR. BARNARD: Objection. A: I thought it was very unusual. THE COURT: That's a comment. I will put you over there with Thomas Shaughnessy. He's a great defense attorney. You can't * * * Q: If I understand your testimony, you had never did you ask THE COURT: This is Shaughnessy's stuff. You have asked the question. Ask him the question, not what you think he said. Please. * * * Q: I want to know what. MR. BARNARD: Objection. THE COURT: He said he doesn't have any specific items. And again can I call you Tom? MR. SILBERMAN: Your Honor, he just testified yes, but he doesn't -12- THE COURT: Well, I don't want to argue with you. Ask your next question. Even Shaughnessy knows enough to keep quiet after that. This is off the record. * * * Q: And that one was not, was it? A: No. MR. BARNARD: Objection. Relevance. THE COURT: Sustained. It is it is a comment, again, Mr. Shaughnessy. Pardon me. Your name is Silberman. It is a comment on the evidence. Ignore it. MR. SILBERMAN: Thank you, Your Honor. THE COURT: You are welcome. * * * The trial court's association of plaintiff's counsel was clearly inappropriate, but there is no evidence the trial judge harbored hostility or attempted to impugn the integrity of plaintiff's counsel. Therefore, these four remarks were not prejudicial. Corradi next argues the trial judge had ex parte communications with defense counsel. During the trial and outside the presence of the jury, the trial judge stated, "I've been approached by defense attorney that he has a motion to make, he wants to voir dire the next potential witness. Okay. You may. You want to call her in or argue? There's a voir dire?" Later in -13- the course of the proceedings the trial judge stated, "We are in chambers, and I have been approached by the Plaintiff's attorney and I mean the defense attorney, and he indicates he wants to put something on the record as to an objection to certain types of witnesses." Corradi contends there were apparently ex parte communications and the resulting rulings denied her a fair trial. Canon 3(A)(4) of the Code of Judicial Conduct provides: "A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. * * * Nothing contained herein, however, shall preclude a judge from non-substantive ex parte communications on procedural matters and matters affecting prompt disposal of the business of the court." It appears from the record in this case that defense counsel had ex parte communications with the trial judge on two occasions. It also, however, appears the content of those communications were involved in non-substantive matters. Merely asking a trial judge to entertain a motion or permit counsel to place an objection on the record in an ex parte conversation is not a violation of Canon 3(A)(4) of the Code of Judicial Conduct. Furthermore, the record clearly indicates defense counsel's motion and objection were fully and fairly resolved in the presence of plaintiff's counsel. Therefore, any ex parte conversations, did not deny Corradi a fair trial. See Bland v. Graves (1994), 99 Ohio App.3d 123, 136-138. -14- Corradi next argues the trial judge reached conclusions about the admissibility of certain evidence before the testimony was proffered thereby precluding her from obtaining a fair trial. A trial judge's opinions of law, even if erroneous, are not by themselves evidence of bias or prejudice. In re Disqualification of Murphy (1988), 36 Ohio St.3d 605. In this case, the trial judge's premature conclusions about certain evidence raises a question of the admissibility of the evidence, not one of alleged bias of the trial judge. The question of admissibility of the evidence will be addressed in response to Corradi's second assignment of error. Corradi also argues the trial judge erred to the substantial prejudice of the defendant by instructing the jury to only consider certain witnesses. This argument is also one which raises a question of law, not of bias. This question will be addressed in response to Corradi's sixth assignment of error. Corradi next argues the cumulative effect of the trial judge's conduct prevented her from obtaining a fair trial. During the course of the voir dire of Rebecca Shaw outside the presence of the jury, plaintiff's counsel argued for admission of her testimony. The trial judge excluded the testimony and, on four separate occasions, he told plaintiff's counsel if he did not like the ruling, he could take it to the court of appeals. At one point, plaintiff's counsel stated, "Your Honor, if you will, at this point in time, you'll have to excuse my lack of experience as a trial lawyer, but I don't know exactly what to do. -15- I understand what your ruling is going to be here. I disagree with the ruling. This is a critical witness for my case. I would ask for the right to file a motion with the Court of Appeals now, 'cause I can't proceed further." After reviewing the trial judge's comments on the record during the voir dire, it is clear the trial judge exhibited frustration with plaintiff's counsel, but those comments took place outside the presence of the jury, and could not have prejudiced Corradi's right to a fair trial. Corradi also argues the trial judge erred when it sustained objections to plaintiff's counsel's questions during direct examination on several occasions where defense counsel had not posed an objection and the cumulative effect of the trial judge's actions were prejudicial. In each instance, the trial judge properly exercised his authority to intervene in order to provide for the orderly and expeditious presentation of the evidence. See State v. Davis (1992), 79 Ohio App.3d 450. Initially, opposing counsel made an objection to Corradi's counsel making comments rather than asking questions. Thereafter, in each instance the trial judge intervened to get Corradi's counsel to ask a question of the witnesses rather than making a comment; the record does not reveal the trial judge displayed any bias or hostility during these objections. Accordingly, the cumulative effect of the conduct of the trial judge in this case did not deny Corradi a fair trial. In her second and third assignments of error, Corradi argues the trial court erred in excluding evidence which denied her a fair -16- trial. "A trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271. Appellate review is limited to a determination of whether the lower court abused its discretion. E.g. Peters v. Ohio State Lottery Comm. (1992), 63 Ohio St.3d 296, 299. The term "abuse of discretion" connotes more than an error of law or judgment, it implies the court's attitude is unreasonable, arbitrary, or unconscionable. E.g. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Corradi argues the trial court erred in excluding evidence of "rumors" as hearsay. Corradi asserts the evidence of rumors was not hearsay within the meaning of Evid.R. 801(C). In the alternative, Corradi asserts the evidence of rumors constituted an admission by a party-opponent within the meaning of Evid.R. 801(D)(2)(d), and therefore, was not hearsay. Corradi also asserts the rumors were exceptions to the hearsay rule under Evid.R. 803(1), (3), and (20). "Hearsay" is an out-of-court statement offered to prove the truth of the matter asserted. Evid.R. 801(C). Where an out-of- court statement is offered without reference to its truth, it is not hearsay. State v. Price (1992), 80 Ohio App.3d 108. "A statement is not hearsay if it is admitted to prove that the declarant made it, rather than to prove the truth of its contents." State v. Williams (1988), 38 Ohio St.3d 348. "Words constituting -17- conduct are not hearsay, e.g., words of a contract, libel, slander, threats and the like." Evid.R. 801(C), Staff Note. In this case, Corradi presents the testimony of numerous witnesses to prove there were "rumors" circulating among the employees of EMMCO about the reasons for her dismissal. This testimony was not used to prove the truth of the contents of the statements, but simply to demonstrate that the statements were made. Therefore, the evidence of rumors was not hearsay within the meaning of Evid.R. 801(C). Having found the evidence of rumors not to be hearsay within the meaning of Evid.R. 801(C), Corradi's alternative arguments under Evid.R. 801(D)(2)(d) and 803(1), (3), and (20) are moot. Although the rumors in this case were not hearsay and were admissible, the rumors were not attributed to any of the defendants. Absent some evidence the rumors were attributable to or caused by the defendants, they are not actionable. See Turk and Cooper v. Foster, supra. While it is clear certain rumors were circulated by Soltis, it is not clear she was the source of the rumors Corradi sought to introduce into evidence through the testimony of EMMCO employees. Because Corradi failed to establish how the rumors related to the slanderous statements made by Soltis, we find the trial court did not abuse its discretion in excluding them as evidence. Corradi also argues the trial court erred in the exclusion of the testimony about the nature of a conversation she had with Sergeant William Schultz of the Bedford Heights Police Department. -18- Having reviewed the transcript and the manner in which these questions were asked, it is clear Corradi was not attempting to elicit hearsay testimony. However, Evid.R. 103(A)(2) requires a party to proffer the substance of excluded evidence unless the substance of that evidence is apparent. The failure to proffer that excluded evidence waives any error. See State v. Brooks (1989), 44 Ohio St.3d 185. In this case, Corradi failed to proffer the substance of her conversation with Schultz and its relevance to this case is not apparent. Accordingly, any error in excluding that testimony was waived. Corradi also argues the trial court improperly excluded the testimony of Regina Shaw as hearsay. Shaw would have testified that she was prepared to hire Corradi for a job with Associated Estates Realty Company, but decided not to hire Corradi on the basis of an unfavorable recommendation from EMMCO. While another person contacted EMMCO for Shaw, Shaw's testimony was not offered for its truth. See Price, supra. Shaw's testimony was offered to prove Corradi received an unfavorable recommendation from EMMCO and as such, represented evidence of conduct which is not hearsay. See Evid.R. 801(C). Accordingly, we find the trial judge improperly excluded the testimony of Regina Shaw. Nonetheless, an unfavorable recommendation made in good faith was a privileged communication. A communication by an employer as to the reasons for the discharge of a former employee to the former employee's prospective employer is protected by a qualified privilege. Rinehart v. Maiorano (1991), 76 Ohio App.3d 413, 421. -19- "Only where the statements are made maliciously is the privilege destroyed." Id. In this case, Corradi did not present any evidence as to who conveyed the unfavorable recommendation on behalf of EMMCO, or as to its content or the substance of the recommendation. Absent some evidence that the communication was malicious, this court must presume it was privileged. Although the trial court clearly erred in excluding the testimony of Rebecca Shaw, we find no abuse of discretion because the communication was protected by a qualified privilege. Corradi also argues the trial court erred by refusing to permit her counsel to cross-examine witnesses identified with the defendant company EMMCO. Allowing or refusing to allow leading questions in the examination of a witness is subject to the control of the court, and absent an abuse of discretion, the trial court's decision should not be disturbed. Ramage v. Central Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97, 111. Evid.R. 611(C) provides: "***When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions." Where a witness is identified with an adverse party but is not hostile, it is not an abuse of discretion for the trial court refuse to allow the use of leading questions. See Ramage, supra. In the case, counsel for Corradi called several employees of EMMCO on direct examination, but the trial did not permit him to ask them leading questions. To the extent that they were employed by the defendant company, EMMCO, they were identified with an -20- adverse party within the meaning of Evid.R. 611(C). Nonetheless, there was no evidence during direct examination that they exhibited hostility toward Corradi. Therefore, the trial court did not abuse its discretion. In her fifth assignment of error, Corradi argues the trial erred by refusing to permit her to amend her complaint. Civ.R. 15(B) provides: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.***" "Under Civ.R. 15(B), implied consent is not established merely because evidence bearing directly on an unpleaded issue was introduced without objection; it must appear that the parties understood the evidence was aimed at the unpleaded issue." State, ex rel. Evans, v. Bainbridge Twp. Trustees (1983), 5 Ohio St.3d 41 at paragraph two of the syllabus. "Whether an unpleaded issue is tried by implied consent is to be determined by the trial court, whose finding will not be disturbed, absent showing of an abuse of discretion." Id. at paragraph three of the syllabus. In this case, counsel for Corradi moved to amend the complaint to include the torts of invasion of privacy and intentional infliction of emotional distress immediately prior to resting the plaintiff's case. The trial judge denied the motion. A careful review of the record does not reveal any discussion or testimony during the trial that would suggest the parties understood the evidence to be aimed at the unpleaded issues of invasion of privacy or intentional infliction of emotional distress. Accordingly, the -21- trial court did not abuse its discretion in denying Corradi's motion to amend the pleadings under Civ.R. 15(B). In her sixth assignment of error, Corradi argues the trial court erred in its instructions to the jury by misstating the elements of defamation and by refusing to instruct the jury on slander per se. Requested jury instructions should be given if they are correct statements of the law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the instruction. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591. "In reviewing a record to ascertain the presence of sufficient evidence to support the giving of an instruction, an appellate court should determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction." Id., quoting Feterle v. Huettner (1971), 28 Ohio St.2d 54 at the syllabus. The question of whether a statement is slander per se is an issue of law for the trial court to decide. Matalka v. Lagemann (1985), 21 Ohio App.3d 134, 136. "Slander per se means that the slander is accomplished by the very words spoken." McCartney v. Oblates of St. Francis deSales (1992), 80 Ohio App.3d 345, 353. "In order for an oral defamatory remark to be considered slander per se it must consist of words which import an indictable criminal offense involving moral turpitude or infamous punishment, imputes some loathsome or contagious disease which excludes one from society or tends to injure one in his trade or occupation." Id. In this case, Soltis told two people that Corradi was discharged -22- for taking money from the petty cash fund, and told another person that Corradi was discharged for removing carpeting and appliances from the apartments she managed. In both instances, Soltis suggested Corradi had committed theft offenses which were indictable offenses involving moral turpitude, and tended to injure reputation in her occupation. Thus, as a matter of law, the statements allegedly made by Soltis were slander per se, and the trial court erred in failing to instruct the jury on slander per se. Accordingly, this case is reversed and remanded for a new trial against Irene Soltis. Corradi also argues the trial court erred in failing to instruct the jury on the issue of nominal damages. In an action for slander per se compensatory damages will be presumed. King v. Bogner (1993), 88 Ohio App.3d 564, 567. Because this action involves slander per se and damages are presumed, the question of whether Corradi was entitled to a jury instruction on nominal damages is moot. Judgment affirmed in part and reversed in part. -23- This cause is affirmed in part, and reversed in part. It is ordered that appellant and appellee share the 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 Court of Common Pleas 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. PORTER, J., and McMONAGLE, 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 journalization, at which .