[Cite as Sullins v. Raycom Media, Inc., 2013-Ohio-4697.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 99235

LAVELLE SULLINS

PLAINTIFF-APPELLANT 

vs. 

RAYCOM MEDIA, INC., ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

RECONSIDERATION DENIED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-771804 

BEFORE: Rocco, J., Boyle, P.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: October 24, 2013 
ATTORNEYS FOR APPELLANT

Joshua R. Cohen 

Peter G. Pattakos 

Cohen, Rosenthal & Kramer 

700 West St. Clair Avenue 

The Hoyt Block Building - Suite 400 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEES WUAB AND WOIO, L.L.C. 

Michael K. Farrell 

Melissa A. Degaetano 

Baker & Hostetler L.L.P. 

PNC Center 

1900 East 9th Street 

Suite 3200 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY CRIME STOPPERS 

George S. Crisci 

Jonathan D. Decker 

Zashin & Rich Co., L.P.A. 

55 Public Square, 4th Floor 

Cleveland, Ohio 44113 

ATTORNEY FOR APPELLEE PINPOINT MEDIA, INC. 

Daniel Thiel 

75 Public Square 

Suite 650 

Cleveland, Ohio 44113 

KENNETH A. ROCCO, J.: 
{¶1} Defendants-appellees WOIO and WUAB (collectively, “WOIO”) have filed a 

motion for reconsideration or, alternatively, to certify conflict arguing that this court’s 

August 15, 2013 decision: (1) imposes liability without fault, (2) ignores the lack of 

evidence showing negligence on the part of WOIO, and (3) is contrary to the Ohio 

Supreme Court’s application of the fair report privilege in Oney v. Allen, 39 Ohio St.3d 

103, 529 N.E.2d 471 (1988). For the reasons that follow, WOIO’s motion is denied. 

{¶2} WOIO first argues that this court should reconsider its August 15, 2013 

decision because the court “based its ruling” on “the incorrect statement that ‘[u]nless a 

privilege applies, damages and fault are generally presumed to exist if a statement is 

defamatory per se’” and thereby “impose[s] liability” on appellees “without fault.” We 

disagree. 

{¶3} As set forth in our August 15, 2013 decision, we found that appellees’ 

inaccurate depiction of Sullins on the Warrant Unit program as a fugitive presently 

wanted and evading arrest on an outstanding warrant for passing bad checks is 

defamation per se and that the innuendo that Sullins is a bad check artist is defamation per 

quod. We further found that Sullins presented sufficient evidence to defeat summary 

judgment as to whether appellees were negligent in publishing false statements about him 

and that there was an issue of fact as to whether appellees’ defamatory statements were 

privileged. This court has not presumed anything regarding appellees’ fault in this case. 

 Rather, based on our review of the record, we determined that there are genuine issues 

of material fact as to who, if anyone, bears responsibility for the defamatory depiction of 
Sullins on the Warrant Unit program. Accordingly, this argument lacks merit. 

{¶4} WOIO also contends that our decision in this case is at odds with the Ohio 

Supreme Court’s decision in Oney v. Allen, 39 Ohio St.3d 103, 529 N.E.2d 471 (1988). 

Once again, we disagree. In Oney, the issue was whether publication by a newspaper 

that “Mike Oney, 32, of Noble Road, Shiloh,” had been indicted for “trafficking” was a 

“fair and impartial” report of an indictment of “Mike Oney (aka) Stoney” for 

“trafficking” and, as such, was privileged pursuant to R.C. 2317.05. Id. at 103-105. 

Oney claimed that the privilege was inapplicable because the defendants added 

information that was not in the indictment, i.e., the age and address of Mike Oney, and 

failed to include information that was in the indictment (“aka Stoney”), in the report. Id. 

at 106. 

{¶5} In Oney, the prosecutor had given a reporter “off the record” a list of 

individuals (including addresses, dates of birth, and social security numbers) who were 

going to be indicted on drug trafficking charges. Id. at 103-104. The list included 

“Oney, Mike (aka) Stoney.” The prosecutor claimed that he told the reporter that a court 

order protected the indictments from becoming public until the defendants were in 

custody. Id. The reporter claimed that he was given the list with the understanding 

that he would not publish the names until after the sheriff’s department began to arrest the 

individuals. Id. The court did not need to consider whether any “understanding” to 

delay publication impacted the reporting privilege because, prior to publication, the 

indictment of Mike Oney for trafficking was publicly reported on the criminal court’s 
docket. Id. at 103-104, 107. The reporter compared the names on the list he had 

received from the prosecutor with those listed on the court’s docket and published an 

article reporting on the indictments the following day. Id. at 103-104. 

{¶6} In concluding that the publication was privileged, the court noted that the 

prosecutor’s office had identified Oney, by name, address, age, and social security 

number, as the subject of the indictment, and that when Oney went to the sheriff’s 

department after learning of the indictment, he confirmed that his address and social 

security number were the same. Id. at 107. “Under these facts,” the court “reject[ed] 

the argument that [Oney] was never indicted for trafficking.” Id. Because under “the 

facts and circumstances which provide the context to the docketed indictment,” the 

“pivotal fact” — i.e., “Mike Oney was indicted” — was true, the court determined that 

the privilege applied, even though Oney was mistakenly indicted. Id. The court held 

that “[a] publication is substantially accurate if it conveys the essence of the official 

record to the ordinary reader, without misleading the reader by the inclusion of inaccurate 

extra record information or the exclusion of relevant information in the record.” Id. at 

106, citing 3 Restatement of the Law 2d, Torts, Section 611, Comment f (1965); Mark 

v. Seattle Times, 96 Wash.2d 473, 493, 635 P.2d 1081 (1982). 

{¶7} WOIO contends that “[t]his case is no different” because “[i]t is undisputed 

that [Sullins] had already been convicted of passing bad checks when the Sheriff’s 

department erroneously told Crime Stoppers that he was wanted for passing bad checks.” 

 The fact is, however, that this case is different. Indeed, the facts of this case that 
distinguish it from Oney are so obvious, this court did not think it needed to explicitly 

distinguish Oney in its opinion. 

{¶8} Whereas in Oney, the court determined that the “pivotal” aspect of the 

published statement — i.e., that Mike Oney was indicted — was “true,” Oney at 107, 

Sullins was not a fugitive, not presently wanted, and not evading arrest for “passing bad 

checks” — as represented on the Warrant Unit program — at the time the program aired. 

 WOIO’s application for reconsideration, as did its briefs, conveys the attitude that 

because Sullins had been previously convicted of one count of passing bad checks more 

than ten months before the Warrant Unit program aired and because he had been 

previously charged with or convicted of other minor misdemeanor or traffic-related 

offenses (including offenses for which warrants were outstanding at the time the program 

aired), Sullins is somehow not entitled to recourse for appellees’ defamatory statements. 

 This is incorrect. Simply because Sullins was convicted of, or charged with, other 

offenses in the past does not mean that he is undeserving of protection from defamatory 

statements. 

{¶9} Further, in this case, unlike in Oney, the government placed an explicit caveat 

on the accuracy of the information it provided, i.e., that the warrant information received 

from the sheriff’s department should be updated by checking the court’s docket to 

confirm its continued accuracy prior to airing, which appellees arguably failed to do. 

What WOIO describes as a “caveat” to the publication of the information in Oney related 

only to the timing of the publication, not the accuracy of the information to be published. 
 The court in Oney did not consider whether the prosecutor’s “caveat” to delay 

publication of the information the reporter had received impacted the fair report privilege 

because prior to the publication, the indictment of Mike Oney for trafficking was publicly 

reported on the criminal court’s docket. Oney at 103-104, 107. Once it became part of 

the public record, the court found that there was no restriction on the timing of the 

publication of that information. Id. at 107. 

{¶10} Finally — and most significantly — in this case, unlike in Oney, there was 

significant, potentially misleading, extra-record information included in the publication. 

This is not a case in which the fact that a warrant had been issued for Sullins’s arrest for 

passing bad checks was matter-of-factly reported in a police news blotter. If that were 

the case, appellees’ publication might well have been protected by the fair report 

privilege. 

{¶11} Appellees, however, did not simply publish inaccurate information, received 

from the sheriff’s department, regarding the warrant that had been previously issued for 

Sullins’s arrest. Sullins was identified on the Warrant Unit program as a fugitive from 

justice, one of “Cleveland’s 25 Most Wanted” — someone wanted more than all other 

wanted persons, someone so dangerous that the narrator of the program cautioned 

viewers: “Do not attempt to apprehend these people. You leave that to the 

professionals.” 

{¶12} Whereas Oney was a case in which, based on the undisputed facts, the court 

determined that the privilege applied as a matter of law, this case is one in which, based 
on disputed facts — including the effect of the “caveat” from the sheriff’s department to 

update the warrant information received prior to airing, whether the “caveat” was 

complied with, and the impact of identifying Sullins as a fugitive wanted on an 

outstanding warrant for passing bad checks and as one of “Cleveland’s 25 Most Wanted” 

— the determination of whether the representations made regarding Sullins on the 

Warrant Unit program constituted a “substantially accurate,” “fair and impartial 

reporting” of the warrant information received from the sheriff’s department is more 

appropriately resolved by a jury. See, e.g., Young v. Morning Journal, 76 Ohio St.3d 

627, 628, 669 N.E.2d 1136 (1996). 

{¶13} Finally, WOIO contends that because it did nothing but broadcast a program 

that it “understood * * * to be based on official, public records provided by the sheriff’s 

department,” and did not participate in creating, editing, or producing the Warrant Unit

program, it cannot be liable for any defamatory statements relating to Sullins. 

 {¶14} Citing Amann v. Clear Channel Communications, Inc., 165 Ohio App.3d 

291, 2006-Ohio-714, 846 N.E.2d 95 (1st Dist.2006), and several authorities from 

jurisdictions outside Ohio, WOIO argues that there is no factual basis for imposing 

liability on WOIO in this case because “relying on wire services, news aggregators, and 

similar organizations as to the content they deliver is entirely reasonable and not 

negligent.” However, as discussed above, this is not a case in which WOIO simply 

republished material taken from a reputable news service. Further, Amann was not a 

defamation case. It involved whether a broadcaster owed a duty of care to its audience 
to investigate the accuracy of claims made in the advertisements it broadcast. Id. at ¶ 6.

{¶15} The other cases cited by WOIO in support of this argument are likewise 

distinguishable. For example, Young v. Russ, 11th Dist. Lake No. 2003-L-206, 

2005-Ohio-3397, involved a defamation claim arising out of a news story that reported 

that the plaintiff had harmed children at the school where he worked after a child had 

recanted the claims. The Eleventh District held that the anchorman who merely 

introduced the story but had no involvement in the origination or investigation of the 

story, no role in drafting scripts for, editing, modifying, or contributing to the story, and 

no involvement in the decision to pursue or air the story, had no liability. Id. at ¶ 55. 

As to the news reporter who investigated the story and the broadcast station who decided 

to air the story with knowledge that the child had recanted, the court held that an issue of 

fact existed as to their alleged negligence. Id. at ¶ 52-53. McPeek v. Leetonia 

Italian-American Club, 174 Ohio App.3d 380, 2007-Ohio-7218, 882 N.E.2d 450 (7th 

Dist.), involved a defamation action arising from disciplinary proceedings in a social club. 

{¶16} Despite its attempt to minimize its role, WOIO did something in this case. 

It selected the Warrant Unit program for airing on its station, with knowledge of its 

content and format, including the segment entitled “Cleveland’s 25 Most Wanted.” It 

selected the program for airing in the hopes of entertaining and attracting viewers to its 

station by its arguably sensationalist, inflammatory content. WOIO’s argument that it 

had nothing to do with the content of the program it had selected to air, had no role in 

ensuring that the information provided in the program was accurate, and had no 
information as to how the local fugitives identified as “Cleveland’s 25 Most Wanted” 

were chosen, does not, as WOIO contends, absolve it of liability, but rather, creates an 

issue of fact for the jury to decide. None of the authorities cited by WOIO supports a 

contrary conclusion. 

{¶17} Accordingly, for the reasons set forth above, WOIO’s application for 

reconsideration or, alternatively, to certify conflict is denied. 

_______________________________________ 

KENNETH A. ROCCO, JUDGE 

MARY J. BOYLE, P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR