COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69090 : DANIEL J. KEEHAN : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION RESERVE INDUSTRIES CORP., ET AL. : : : Defendants-Appellants : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 6, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-266142 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: JOHN M. MANOS, ESQ. JAMES L. GLOWACKI, ESQ. ERIC J. OHANIAN, ESQ. CHRISTOPHER R. CLAFLIN, ESQ. MANOS, PAPPAS & STEFANSKI JAMES J. IMBRIGIOTTA, ESQ. 34950 Chardon Road, #206 GLOWACKI & ASSOCIATES Willoughby Hills, Ohio 44094 510 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 - 2 - KARPINSKI, J.: This appeal arises out of an defamation action by a former employee of a mold purchaser against the mold manufacturer following a contract dispute. Plaintiff-appellee Daniel Keehan filed a three-count complaint against defendant-appellant Reserve Industries, Inc. ("Reserve") and its treasurer Alexander Goldstein. Keehan's complaint alleged that Reserve and his former employer Du Pont Tribon Composites, Inc. ("DTC") became embroiled in a dispute concerning the quality of two industrial molds manufactured and sold by Reserve to DTC. Keehan alleged that, during the course of the dispute, Goldstein sent a defamatory letter about him to DTC which adversely affected his employment at DTC. Keehan added claims for interference with his employment relationship and for intentional infliction of emotional distress and requested compensatory and punitive damages. Reserve and Goldstein denied the substantive allegations of Keehan's complaint. Keehan subsequently dismissed without prejudice his claims against Goldstein individually and only his claim for defamation against Reserve remained to be adjudicated. Reserve was permitted to raise the affirmative defense of truth to the defamation claim immediately prior to trial and the case thereafter proceeded to trial before a jury. Keehan presented testimony from the following five witnesses: (1) his supervisor at DTC, Mark Schmeckpeper; (2) DTC - 3 - human resources supervisor, Karen Haburt; (3) Goldstein, by way of his deposition testimony from which excerpts were read; (4) Keehan; and (5) economist John Burke. Keehan testified that he supervised the DTC pilot plant which manufactured precision prototype composite parts using plastic molds. Keehan, who had previously been a customer of Reserve, arranged a meeting at Reserve with John Ruminsky and James Moore where he submitted drawings of a proposed aircraft part and discussed the design of two molds for making the parts. Keehan did not obtain or approve any detailed prints of the molds before the molds were completed. Keehan testified that the two molds prepared by Reserve did not meet his written specifications and that the molded parts required more extensive machining than he had requested. Reserve presented testimony from the following four witnesses: (1) DTC general manager, Terry Stimeling; (2) Reserve vice-president of tooling, John Ruminsky; (3) Goldstein; and (4) mold design contractor, James Moore. Ruminsky and Moore testified that during the design meeting Keehan orally instructed them to make the mold "plastic safe." The term "plastic safe" means the molds are made larger than depicted in the drawing tolerances for the parts so that the parts formed from the molds could be machined into exact specification. DTC withheld payment of $19,000 for the two molds. During the course of the dispute, Goldstein sent a three-page letter to DTC stating in part that "Keehan lied to us and he lied to you *** or alternatively, that Dan is technically or managerially - 4 - incompetent." After Reserve threatened litigation against DTC to recover the unpaid balance, DTC and Reserve resolved the dispute by dividing in half the amount in controversy. Keehan was subsequently transferred from his management position at the DTC pilot plant to a technical position. Following closing arguments and its instructions, the trial court submitted Keehan's defamation claim to the jury. The jury returned a verdict in favor of Keehan on his defamation claim and awarded $65,000 in compensatory damages and $35,000 in punitive damages. The trial court entered judgment on the jury verdict, and the parties filed post-trial motions. The trial court subsequently granted Keehan's motion for prejudgment interest on the compensatory damage award and denied Reserve's motion for judgment notwithstanding the verdict or for new trial. Reserve timely appeals raising nine assignments of error which shall be discussed in a different order than assigned. I. Reserve's first, second, and third assignments of error challenge the trial court's rulings on directed verdict motions as follows: THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT IN FAVOR OF THE DEFENDANT/APPELLANT WHEN THE PLAINTIFF/APPELLEE DID NOT PRESENT EVIDENCE AT TRIAL ESTABLISHING A PRIMA FACIE CASE OF DEFAMATION. THE TRIAL COURT ERRED IN NOT DIRECTING A VERDICT IN FAVOR OF DEFENDANT/APPELLANT WITH RESPECT TO PUNITIVE DAMAGES. THE TRIAL COURT ERRED IN DIRECTING [SIC] IN FAVOR OF THE PLAINTIFF/APPELLEE THE ISSUE OF WHETHER THE ALLEGED DEFAMATORY STATEMENT WAS, IN FACT, DEFAMATORY. - 5 - These assignments of error lack merit. Reserve argues that Keehan failed to show Reserve was negligent, that any damages proximately resulted from Goldstein's letter, or that the letter was defamatory per se to support the jury's defamation verdict. Reserve also argues there was insufficient evidence that it published the letter with actual malice to support the jury's award of punitive damages. Civ.R. 50(A)(4) establishes the standard governing motions for directed verdict and provides as follows: When granted on the evidence. When a motion for a 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. Based on our review of the record in compliance with this standard, Keehan presented sufficient evidence for the jury to find, by clear and convincing evidence, against Reserve on all elements of his defamation claims. Lansdowne v. Beacon Journal Pub. Co. (1987), 32 Ohio St.3d 176. The evidence, when viewed in the light most favorable to Keehan, indicates that Goldstein's letter resulted from improper pressure to obtain payment with at least a negligent disregard for the truth of the matters asserted. The record demonstrates the parties disputed the extent, if any, to which Reserve was orally instructed to make some or all of the dimensions of the molds larger than the written design - 6 - specifications for the part. Goldstein's letter indicates that Reserve followed Keehan's express oral instructions when manufacturing the mold. Goldstein maintained that the dispute resulted from Keehan's incompetence or from his subsequent lie, that is, his denial that he gave these instructions. However, Goldstein provided contrary testimony at trial. Goldstein testified his investigation of the situation revealed that the mold designer used his own judgment when designing the mold because it was hard to get Keehan to specify where and how much additional material was to be left on the molded parts. This characterization of the events completely contradicted the statements in his prior letter that Keehan "lied" or was "incompetent." Goldstein also knew that Reserve did not obtain approval of the mold designs before they manufactured the molds and that his own employee and mold designer admitted making some mistakes. Goldstein's letter departed from ordinary business practices, even in the context of commercial disputes, by containing statements which imputed falsehood, dishonesty and/or incompetence about Keehan in his profession. The jury could properly find that Goldstein's defamatory statements were factually false, and that Goldstein either knew, recklessly disregarded, or should have known that they were false, because the statements contradicted information his own employees had given him. Goldstein's newly minted contention for the first time on appeal that these statements merely constituted his - 7 - opinion, rather than provably false statements of fact, is unpersuasive. Moreover, contrary to Reserve's argument on appeal, there is evidence that this letter proximately resulted in adverse action against Keehan by DTC. Keehan's former supervisor, Schmeckpeper, testified that the plant manager wanted to fire Keehan because of the dispute with Reserve. Plant manager Stimeling testified the dispute was a factor in his decision to reassign Keehan. It is well established that such defamatory statements which injure a person in his trade or profession are actionable per se. Douglas Elec. Corp. v. Grace (1990), 70 Ohio App.3d 7, 13. As a result, Reserve has failed to show that the trial court improperly instructed the jury that Goldstein's letter was defamatory per se. Finally, the record also contains sufficient evidence that Goldstein made the statements with "actual malice" to warrant punitive damages. In the context of claims for punitive damages by private figures in defamation cases, the term "actual malice" means "anger, hatred, ill will, a spirit of revenge, or a reckless disregard of the consequences or the legal rights of others." See Worrell v. Multipress, Inc. (1989), 45 Ohio St.3d 241, 248-249; accord Ubelacker v. Cincom Systems, Inc. (1992), 80 Ohio App.3d 97. When viewed in the light most favorable to Keehan, the record supports the inference that Goldstein acted with actual malice in this case. The jury could find that Goldstein made false charges calculated to damage Keehan's - 8 - reputation in order to coerce or extort payments to which Goldstein knew he was not entitled. The jury could also reasonably conclude that since Goldstein knew that his own people made mistakes on the molds, he persisted in demanding payment because of the precarious financial situation of his own company. This situation, the jury could understandably conclude, went well beyond an ordinary, legitimate, business dispute. Goldstein admitted viewing Keehan as a "pawn" in the matter and stated that he did not care what effect the letter had on Keehan's employment. Viewed in a light favorable to Keehan, these circumstances indicate that, at the very least, Goldstein's letter recklessly disregarded the consequences and/or Keehan's legal rights. In summary, Reserve has failed to show that there was insufficient evidence of negligence, proximate cause, or actual malice to support the jury verdict. Accordingly, Reserve's first, second and third assignments of error are overruled. II. Reserve's sixth and ninth assignments of error claim that Keehan made improper arguments to the jury as follows: THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING PLAINTIFF/APPELLEE TO MAKE UNSWORN HEARSAY STATEMENTS DURING OPENING ARGUMENTS. THE TRIAL COURT ERRED IN PERMITTING IMPROPER ARGUMENT BY PLAINTIFF/APPELLEE'S COUNSEL DURING CLOSING ARGUMENT. These assignments of error lack merit. - 9 - Reserve argues that counsel for Keehan improperly referred to his dismissal of claims against Goldstein personally and to discussions between defense counsel and DTC general manager Stimeling. Based on our review of the record, the challenged comments, viewed in the context of the entire case, do not constitute reversible error. The challenged comment during Keehan's opening statement explained that Reserve assumed liability for Goldstein's conduct and that Goldstein personally was no longer a defendant in the case. Counsel for Keehan added that Goldstein was dismissed after counsel determined that he could collect any damages from Reserve. The parties filed a written stipulation prior to trial that Goldstein acted within the scope of his employment. The trial court instructed the jury at the close of the case concerning Reserve's liability for Goldstein's conduct and the fact that opening statements did not constitute evidence. Reserve does not dispute the truth of the statements and we decline to speculate whether any unfair prejudice resulted. Counsel for Keehan argued during final closing arguments that Stimeling's testimony was not worthy of belief for several reasons. Reserve complains on appeal about a reference to the fact, developed during cross-examination of Stimeling, that defense counsel had spoken to Stimeling twice since his pretrial deposition and again immediately prior to the trial. However, the record shows that Reserve did not raise a timely objection to - 10 - this comment and therefore waived any objection. Moreover, under the circumstances, the comment concerning Stimeling's discussions with counsel was a permissible challenge to the credibility of his testimony and did not improperly denigrate the conduct of defense counsel. Accordingly, Reserve's sixth and ninth assignments of error are overruled. III. Reserve's fourth and fifth assignments of error challenge the trial court's denial of its motion for new trial as follows: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT/APPELLANT'S MOTION FOR A NEW TRIAL ON THE GROUNDS THAT THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT/APPELLANT'S MOTION FOR A NEW TRIAL WHEN THE JUDGMENT RENDERED WAS EXCESSIVE AND GIVEN UNDER THE INFLUENCE OF PASSION OR PREJUDICE. These assignments of error lack merit. Reserve contends, by rehashing the assignments of error discussed above in Sections I and II, that the trial court abused its discretion by denying its motion for new trial. Based on a review of the record, Reserve has failed to show any error. It is well established that a reviewing court will not reverse a trial court's denial of a motion for new trial absent an abuse of discretion. Douglas Elec. Corp. v. Grace, supra at 15-16. As noted above, the specific arguments lack merit for the reasons set forth above and have no more validity in the context of a motion for new trial. Nor has Reserve offered any - 11 - evidence of passion or prejudice. Moreover, when evaluating the weight to be given the testimony, the jury and trial judge had a superior opportunity to observe the witnesses and their demeanor. Under the circumstances, Reserve has failed to show that the jury clearly lost its way and created a manifest miscarriage of justice or that the trial court's denial of its motion for new trial was unreasonable, arbitrary or unconscionable. Accordingly, Reserve's fourth and fifth assignments of error are overruled. IV. Reserve's seventh assignment of error follows: THE TRIAL COURT ERRED IN PERMITTING THE USE OF THE DEPOSITION OF ALEXANDER GOLDSTEIN WHEN GOLDSTEIN HAD NOT BEEN PROPERLY SERVED WITH A TRIAL SUBPOENA. This assignment of error lacks merit. Reserve contends the trial court improperly permitted Keehan to use Goldstein's deposition testimony during trial. Reserve contends that the deposition should not have been used as evidence because Goldstein's absence from trial was due to Keehan's failure to serve him with a subpoena properly. The record shows that Goldstein's deposition was taken on September 1, 1994, approximately five months following Keehan's dismissal of his claims against Goldstein personally. Goldstein was deposed when the case was pending against Reserve only and while Goldstein was an officer of Reserve. The record shows that Goldstein was served a subpoena for his trial testimony at Reserve's address in Cleveland, but not at his residence address - 12 - in Westerville, Ohio. Goldstein did not appear to testify at trial during Keehan's case-in-chief, and the trial court permitted Keehan to introduce Goldstein's deposition testimony into evidence. We note initially that Reserve waived any claim of error concerning use of Goldstein's deposition by affirmatively using the deposition prior to trial. When it amended its answer to add the affirmative defense of truth, Reserve cited the identical deposition to show that Keehan was aware of Goldstein's claim that his statements were true. It would be inequitable to permit Reserve to rely upon the deposition and, at the same time, prohibit Keehan from using it. Moreover, the record shows that Goldstein's deposition testimony was admissible pursuant to Civ.R. 32(A)(2). Civ.R. 32(A)(2) provides in pertinent part as follows: (A) Use of depositions. Every deposition intended to be presented as evidence must be filed at least one day before the day of trial or hearing unless for good cause shown the court permits a later filing. At the trial ***, any part or all of a deposition, so far as admissible under the rules of evidence applied as the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition ***, in accordance with any of the following: * * * (2) The deposition of a party or anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(B)(5) or Rule 31(A) to testify in behalf of a public or private corporation, partnership or association which is a party may be used by an adverse party for any purpose. (Emphasis added.) - 13 - The record demonstrates that Goldstein's deposition was taken in September, 1994, while the case was pending against Reserve only. Goldstein was an officer of Reserve and his deposition was filed more than five months prior to trial. Even if Civ.R. 32(A)(3) applied to Goldstein's deposition as Reserve contends on appeal, Civ.R. 32(A) authorizes use of a deposition which satisfies "any" of the subparts. Because Civ.R. 32(A)(2) specifically authorizes the use of Goldstein's deposition in this case, the deposition was admissible regardless of whether any of the requirements of Civ.R. 32(A)(3) were also satisfied. Accordingly, Reserve's seventh assignment of error is overruled. V. Reserve's eighth assignment of error follows: THE TRIAL COURT ERRED IN AWARDING PREJUDGMENT INTEREST ON THE JURY VERDICT RENDERED HEREIN. This assignment of error lacks merit. Reserve contends the trial court improperly awarded prejudgment interest on the compensatory damages judgment based on its finding that Keehan made a good faith effort to settle the case, but that Reserve did not. However, Reserve has failed to submit a transcript of the hearing on the prejudgment interest award. Without an adequate record, this court must presume regularity and affirm the judgment of the trial court. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. Under the circumstances, Reserve had failed to show the trial court abused - 14 - its discretion or that its prejudgment interest award is not supported by the evidence. Accordingly, Reserve's eighth assignment of error is overruled. Judgment affirmed. - 15 - It is ordered that appellee recover of appellants his 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. LEO M. SPELLACY, C.J., and BLACKMON, J., CONCUR. DIANE KARPINSKI 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 .