[Cite as Hamilton v. Gannett Co., Inc. , 2020-Ohio-6771.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JAMES HAMILTON, : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellant : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : GANNETT CO., INC., et al., : Case No. CT2020-0028 : Defendant - Appellees : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. 2019 - 0310

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 17, 2020

APPEARANCES: For Plaintiff-Appellant For Defendant-Appellees

BRIAN L. ZIMMERMAN JOHN C. GREINER B. Zimmerman Law KELLIE ANN KULKA 229 Third Street NW, Suite 200 Graydon Head & Ritchey LLP Canton, Ohio 44702 312 Walnut Street, Suite 1800 Cincinnati, Ohio 45202Muskingum County, Case No. CT2020-0028 2

Baldwin, J. {¶1} Appellant, James Hamilton, appeals the decision of the Muskingu m County Court of Common Pleas dismissing his complaint for defamation u nder the authority granted the court by Civ. R. 12(b)(6). Appellees are Gannett C o., Inc. and Shelley

Schultz.

STATEMENT OF FACTS AND THE CASE {¶2} Hamilton claims he was defamed by appellees statements in two newspaper articles written by appellee Shelley Schultz and appe aring in the Zanesville Times Recorder, a Gannett operated newspaper. Hamilton's compl aint alleged that a statement from one article, when read in conjunction with a sta tement from the second article, was equivalent to a statement that he was responsible for injuries to his young daughter. The trial court dismissed the complaint, finding tha t the innocent construction rule applied, defeating his claims and warranting dismissal of the complaint. {¶3} Hamilton was the father of a two year old girl, Lillion Rose Ha milton, and the paramour of Karley M. Schaefer. Hamilton had custody of Lillia n, though the circumstances leading to his custody of the child and his livin g arrangements with Schaefer are not disclosed in the complaint or in any pleadings . Hamilton alleges that Lillion died as a result of blunt force trauma to her head, sol ely caused by Schaefer who was later charged, convicted and imprisoned. The complaint prov ides no detail regarding the events leading to the injury other than the person responsi ble, Schaefer, and the fact that it was ultimately fatal. The complaint makes reference to Lillion being placed in Hamilton's custody, and the allegations of the complaint rely o n that fact, so we accept that the child was in Hamilton's custody when she was injured f or purposes of this appeal.Muskingum County, Case No. CT2020-0028 3

{¶4} Hamilton alleges that appellees wrote articles regarding Lillio n's death and that one article contained the following statement: "Lillion ha d been placed in the custody of her father months earlier. Maternal family members continuou sly complained that Lillion was not being properly care for in the custody of her f ather and Schaefer." (Complaint, paragraph 10). Hamilton did not describe the date o f the article and the balance of the article is not described within the allegations or attached to the complaint. Hamilton agreed that this statement is true to the extent it st ates Lillion was in his custody and that the maternal family members were complaining. {¶5} Hamilton alleges that, on June 14, 2019, the appellees publishe d an article referencing the sentence imposed on Schaefer for the death of L illion and comparing it to an unrelated case, where a defendant received a much longer sen tence for the death of a three year old child. Hamilton selects the following stateme nt from the article, claiming it is false and defamatory when read in conjunction with the st atement from the previous article: "Despite the broad differences in sentences, the crim es were similar in nature. Two children, each of whom showed signs of pre-existing injurie s, died as a result of injuries that went untreated.” (Complaint, ¶ 11) {¶6} The balance of the article is not described in the complaint, n or is it attached. Hamilton then alleges: {¶7} “By making the aforementioned false and defamatory statement, D efendant Schultz, on behalf of the Zanesville Times Recorder and its own ers/operators directly indicated that Plaintiff James Hamilton had previously physica lly abused his child, Lillion Rose Hamilton, because it followed Defendant Schultz' reportin g that maternal familyMuskingum County, Case No. CT2020-0028 4

members were continuously complaining that Lillion was not bein g properly cared for by her father.” (Complaint, ¶ 12) {¶8} Hamilton also alleged that appellee Schultz made two additional false and defamatory statements when she was confronted by a family membe r who insisted there were no signs of pre-existing injuries. Schultz allegedly clai med that the autopsy report confirmed Lillion had suffered p rior physical abuse resulting i n untreated injuries and that the deputy coroner had confirmed that Lillion had suffered phys ical abuse resulting in untreated injuries. The complaint does not contain a quote of t he comments allegedly made by either Schultz or the family member, but only paraphras es them. Hamilton mentions “written communications” to his “cousin, McKenzie Prim ,” but the record contains no document matching that description. (Complaint, ¶ 22) {¶9} Appellees moved to dismiss the complaint for failure to state a claim under Civ. R. 12(B)(6). Appellees contend that the statements highli ghted by Hamilton do not refer to him, but are directed at Schaefer and only suggest tha t Lillion suffered injuries and not that he injured Lillion. Appellee also notes that the June 14, 2019 article is not "of and concerning" Hamilton, is subject to the innocent constr uction rule and, finally, that the article is at most, libel per quod and Hamilton did not all ege special damages. {¶10} Hamilton filed his memorandum contra, appellees replied and on April 30, 2020 the trial court dismissed the complaint with the following language: The articles ran in the Times Recorder mentioned in the complai nt, motions and reply never mention the Plaintiff by name. And sinc e the person convicted of the crime alleged does not have the same last name as the Plaintiff, only people who knew the people involved prior to an y of theMuskingum County, Case No. CT2020-0028 5

articles would have any idea whom the Plaintiff was or his rela tionship with the perpetrator. It is the Court's duty in this motion to determine whether the statements made are actionable. The defense argues that the sta tements made fall under the innocent construction rule. The Court agree s and makes a finding based upon the application of the innocent constructi on rule. The statements made are not as a matter of law defamatory.

Decision, Apr. 30, 2020. {¶11} Appellant filed a notice of appeal and submitted two assignment s of error: {¶12} “I. THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF/APPELLANT,

JAMES HAMILTON'S COMPLAINT WHEN IT ERRONEOUSLY DETERMINED THAT THE COMPLAINT ALLEGING DEFAMATION FAILED TO STATE A CLAIM UP(SI C) WHICH RELIEF MAY BE GRANTED PURSUANT TO CIV. RULE 12(B)(6).” {¶13} “II. THE TRIAL COURT ERRED WHEN IT DISMISSED

PLAINTIFF/APPELLANT JAMES HAMILTON'S DEFAMATION COMPLAINT WHEN IT

FOUND THAT THE ALLEGED DEFAMATORY STATEMENTS SET FORTH IN THE

COMPLAINT "WERE NOT DEFAMATORY AS A MATTER OF LAW.”

STANDARD OF REVIEW {¶14} When reviewing a judgment on a Civ.R. 12(B)(6) motion to dismis s for failure to state a claim upon which relief can be granted, our standard of review is de

novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the compl aint. State ex rel. HansonMuskingum County, Case No. CT2020-0028 6

v. Guernsey Cty. Bd. of Commrs ., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992), quoting Assn. for the Defense of the Washington Local School Dist. v. Kiger , 42 Ohio St.3d 116, 117, 537 N.E.2d 1292 (1989). In considering a motion to dismiss , a trial court may not rely on allegations or evidence outside the complaint. State ex rel. Fuqua v. Alexander , 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997). Rather, the tria l court may review only the complaint and documents attached to the complaint or incorp orated into the complaint, even if not attached to the complaint. Fillmore v. Brush Wellman, Inc ., Ottawa App. OT–03–029, 2004–Ohio–3448 quoting Connolly Const. Co. v. City of Circleville, 3rd Dist. Marion No. 9-87-10, 1988 WL 33666, *1 cause dismissed sub nom. Connolly Constr.

Co. v. Circleville , 38 Ohio St.3d 712, 533 N.E.2d 365 (1988) and Weiner v. Klais & Co., 108 F.3d 86, 89 (6 th Cir.1997). The court may dismiss the case only if it appears beyond a doubt that the plaintiff can prove no set of facts entitling the plaintiff to recover. O'Brien v. Univ. Community Tenants Union, Inc ., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.

ANALYSIS

I. {¶15} Hamilton contends that the trial court misapplied Civ.R. 12(b)( 6) and dismissed his complaint for defamation in his first assignment of error. He argued that the isolated statement that he excerpted from an undated articl e in the Zanesville Times Recorder, which he conceded was not defamatory, must be read in conjunction with a second statement that he has drawn from an article published in the same newspaper in June 2019. When read together, Hamilton contends that those st atements have only oneMuskingum County, Case No. CT2020-0028 7

reasonable interpretation and that interpretation is that Hamil ton "had previously physically abused his child, Lilli on Rose Hamilton." (Complaint , paragraph 12) {¶16} Hamilton also contends that appellee Schultz made further defam atory statements to a family member who confronted her about the repo rt that the child showed signs of prior, untreated abuse. Neither these statements nor t he aforementioned articles are in the record. Appellees refer to the articles as attached to their pleadings 1 but the only relevant document in the record is what appears to be the first page of the article published on June 14, 2019. 2 We will consider the language contained within the June article and the allegations in the complaint to decide whether appellant can prove no set

of fact that will allow him to recover on his claim for defamat ion. {¶17} To state a claim for defam ation, Hamilton must allege: “ (1) a false statement of fact was made about the plaintiff; ( 2) the statement was defamatory; (3) the statement was published; (4) the plaint iff suffered injury as a proximate result of the publication and (5) the def endant acted with the requisite degree of fault in publishing the statement . Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 832. A defamatory statement is the unprivileged publication of false and defamatory matter that tends to reflect injuriously on a person 's reputation, or exposes a person to ‘public hatred, contempt, ridicule, sham e or disgrace, or affecting a person adversely in his or her trade, business, or

1 Appellees refer to attachments i n their First Motion to Dismiss , their Reply to Plaintiff's Memorandum Contra the First Mo tion To Dismiss and the Second Mo tion To Dismiss, but no documents are attached.

2 The article ends abruptly and cont ains a notation “1/3” at the bottom of the page, suggesting that it is the fir st of three pages.Muskingum County, Case No. CT2020-0028 8

profession.’ ” A & B–Abell Elevator v. Columbus/Cent. Ohio Bldg. & Constr.

Trades Council , 73 Ohio St.3d 1, 651 N.E.2d 1283 (1995).

Jamison v. Galena, 5th Dist. No. 15 CAE 01 007, 2015-Ohio-2845, 38 N.E.3d 1176 ¶



### 52 {¶18} Hamilton has alleged that the combination of the quotes from th e two articles fulfill the requirements to state a claim for defamati on. Having been challenged by appellees to support the allegation that the combined readin g of the two statements from different articles states a claim for determination, Hamil ton refers to cases that require a review of the totality of the circumstances, or the e ntire article, to determine whether the subject statement may defamatory. He focuses our a ttention on a reference to "eight articles" in BMT Mgt. LLC v. Sandusky Newspapers, Inc ., 6th Dist. Erie No. E08-058, 2009-Ohio-2601, ¶ 20. In that case, the court emphasiz ed the need to consider a newspaper headline and the entire body of the article togethe r in making the determination as to whether a newspaper article is defamatory, Id. at ¶ 19 but did not address Hamilton’s assertion of combining isolated statements f rom two separate articles. {¶19} The second case cited by Hamilton contains an instruction simil ar to that

found in BMT Mgt LLC, supra : "When making this legal determination, the trial court must “review the statement under the totality of the circumstances.” Mendise v. Plain Dealer Publishing Co ., 69 Ohio App.3d 721, 726, 591 N.E.2d 789 (1990). The trial c ourt must read the statements at issue “in the context of the entire arti cle” in order to determine “whether a reader would interpret them as defamatory.” Id. Likewise, in Early v. The

Toledo Blade , 130 Ohio App.3d 302, 320–21, 720 N.E.2d 107, 120 (1998), “the court reviewed the entire article, the surrounding headlines, picture s, captions and graphics”Muskingum County, Case No. CT2020-0028 9

before ruling on the nature of the article described in the com plaint, but neither Mendise

nor Early support Hamilton’s contention that we must consider statements , isolated from the articles in which they appear, and determine whether those statements, read together and outside the context in which they appear, support a claim f or defamation. {¶20} We are required to review the statements in the context of the entire article to determine if the statements are defamatory, but we disagree with Hamilton’s conclusion that the cited cases obligate or authorize this court to interp ret an isolated statement plucked from one article, combined with a statement selected fr om a second article,

without reference to the entire article in which the statements appear. The cases cited by Hamilton also provide no support for appellant's contention and instead the courts in BMT Mgt, LLC, Early and Mendise require review of the nature of the statement in the entire context of the article in which it appears. None adopt the the ory that a statement from one article may be isolated from that article, combined with a statement isolated from a second later article and the interpretation of those two isolat ed statements used to support an allegation of defamation. Such a ruling would open the door to innumerable creative allegations of defamation based upon combinations of two or mor e statements from

different articles. {¶21} We find the better rule is to examine the statement in the cont ext of the article in which it appears to determine its defamatory nature. Hamilton has not provided a complete copy of either article and relies on only the cited excerpts. He described the articles as "concerning the circumstances surrounding the tragi c death of Lillion Rose Hamilton" (Complaint, 10), so we will review the statements in that context and considerMuskingum County, Case No. CT2020-0028 10

the information provided by the portion of the June article att ached to appellees’ motion

to dismiss. {¶22} Hamilton does not contend that the first statement is defamator y and in fact conceded that the following statement is true to the extent it reports that Lillion was in his custody and maternal family members were complaining. Hamilton did not allege the date that it appeared in the newspaper, but appellees contend that i t appeared on January 3, 2019: "Lillion had been placed in the custody of her father mon ths earlier. Maternal family members continuously complained that Lillion was not being prop erly care for in the custody of her father and Schaefer." The second statement appe ared on June 14, 2019: “Despite the broad difference in sentences, the crimes were sim ilar in nature. Two children, each of whom showed signs of pre-existing injuries, d ied as a result of injuries

that went untreated.” {¶23} Because Hamilton has not alleged that the statement from the fi rst article was defamatory, we conclude that statement is accurate and not defamatory. We next consider the totality of the circumstances surrounding the stat ement from the June article to determine if it supports Hamilton’s claim from defamation. {¶24} The excerpt from the June article makes no mention of Hamilton or his responsibility for the child, but focuses only on the actions o f Schaefer and the injuries to the child. The incomplete copy of the article attached to appe llees’ motion to dismiss reflects the caption “Women Sentenced in Separate Cases for Dea th of Children” and

addresses the death of Lillion Rose Hamilton as well as another toddler in an unrelated case. The references to Lillion in the portion of the article in the record are:Muskingum County, Case No. CT2020-0028 11

Two women were sentenced this week in separate cases for causin g the

death of a child in their care. On Monday, a Guernsey County judge sentenced 26-year-old Karley M. Schaefer of Cambridge to 36 months in prison for the death of 2 -year-old

Lillion Rose Hamilton.

* * * Schaefer's conviction was the result of an Alford plea entered on May 7, to the reduced charge of reckless homicide.

* * * Despite the broad difference in sentences, the crimes were simi lar in nature. Two children, each of whom showed signs of pre-existing injurie s, died as a result of injuries that went untreated.

{¶25} Hamilton is never mentioned in the portion of the article that appears in the record. The alleged defamatory statement, viewed in the conte xt of the article, is not "of and concerning" Hamilton, but is a comparison of offenses and s entences received by

two defendants. Whiteside v. United Paramount Network , 12th Dist. Madison No. CA2003-02-008, 2004-Ohio-800, ¶ 15. Hamilton's allegations do not show that the appellees made a false statement of fact about him. Ashcroft v. Mt. Sinai Med. Ctr ., 68 Ohio App.3d 359, 365, 588 N.E.2d 280 (1990), as quoted in Stow v. Coville , 96 Ohio App.3d 70, 72, 644 N.E.2d 673, 675 (1994). See also Worldnet Software Co. v. Gannett Satellite Info. Network, Inc ., 122 Ohio App.3d 499, 504, 702 N.E.2d 149 (1997) ("First, forMuskingum County, Case No. CT2020-0028 12

a statement to be actionable by a plaintiff, it must be shown t hat the allegedly defamatory statement was “of and concerning” the plaintiff.") {¶26} The excerpt from the June article is clearly not “of and concer ning” Hamilton and thus fails to support a viable claim for defamation. Presum ably in recognition of that fault, Hamilton claims that the first statement must be read in conjunction with the later June statement, the combination of which Hamilton interpreted a s a defamatory statement that he abused his daughter. While we are not persua ded that either statement fulfills the "of and concerning" requirement, and as noted infra , case law does not support this combination, we will address Hamilton's interpretation and review the statements under the "innocent construction" analysis. {¶27} Under the “innocent construction” rule, if allegedly defamatory words are susceptible to two meanings, one defamatory and one innocent, t he defamatory meaning should be rejected and the innocent meaning adopted. ” Ferreri v. The Plain Dealer Publishing Co. 142 Ohio App.3d 629, 642, 756 N.E.2d 712 (2001). The rule pro tects only those statements that are reasonably susceptible of an innocent construction. McKimm v. Ohio Elections Comm. , 89 Ohio St.3d 139, 146, 2000-Ohio-118, 729 N.E.2d 364. {¶28} The alleged false statement can be reduced to the phrases, "sho wed signs of pre-existing injuries" and "died as a result of injuries tha t went untreated." Hamilton claims those words, combined with the statements that Lillion w as in his custody and that the maternal family complained that she was not receiving prope r care must be interpreted as a statement that Hamilton abused his daughter. We do not accept this limited interpretation of the statement.Muskingum County, Case No. CT2020-0028 13

{¶29} The maternal family’s complaint that Lillion was not receiving proper care is subject to different interpretations that do not include physic al abuse. The statement that the children "showed signs of pre-existing injuries" fails to d efine the "signs" or significance of those signs. The "signs" need not be actually injuries, but could be evidence that injuries may have occurred in the young girl's pa st, even prior to her placement in Hamilton's custody. The word "pre-existing" sugge sts a time before which the injuries may have occurred, but the ambiguity of the statem ent does not set a reference point for consideration. While we can determine that the injuries, assuming that Lillion suffered injuries other than the fatal injury, occ urred before she was struck by Schaefer, we cannot draw conclusions regarding when or how any injuries occurred. {¶30} Likewise, the reference to the children dying as a result of in juries that went untreated lacks a temporal elem ent in the case of Lillion. The other child mentioned in the article was injured, placed in bed and found unresponsive t he next morning. The timing of Lillion's fatal injury is not described in the subjec t statement or the portion of the

article in the record. The cause of death is tied to some "unt reated injuries" that are undefined. The text of the article would permit a reasonable co nstruction that Lillion's injury was extant for some period of time without Hamilton's kn owledge. {¶31} We find, after reviewing the incomplete article in the record a nd the statements Hamilton drew from the articles, that a reasonable i nnocent construction of the alleged defamatory statement can be drawn from the totality of the circumstances that are contained in the record. The brevity and ambiguity of the article and the isolated statements drawn from the article enable an interpretation that Lillion suffered injury under

circumstances and at a time that was not within Hamilton's cont rol or responsibility. ForMuskingum County, Case No. CT2020-0028 14

that reason, to the extent that any argument can be made that t he articles are "of and concerning" Hamilton, and that these isolated statements can be combined, the innocent construction rule applies to defeat the complaint. {¶32} Finally, we must address the alleged statements of Schultz, all egedly made to one of Hamilton's family members who contacted her about the statement in the article referring to pre-existing injuries. Because we have rejected t he narrow interpretation that Hamilton places on the statements in the Times Recorder and fou nd that they were not defamatory, we feel constrained to reach the same conclusion wi th regard to these allegations. Hamilton's argument also suffers from the lack of any clear statement of Schultz's comments and we find these paraphrased statements are not "of and concerning" Hamilton, but more a dispute between a reader and a reporter regarding the accuracy of a statement that we have found is not defamatory. {¶33} Also, though Hamilton claims that Schultz made these defamatory statements in writing, the record contains no such document, le aving us to speculate as to the content of the statement and further convincing this cou rt that the trial court correctly granted the motion to dismiss. {¶34} We acknowledge that this is a tragic case and likely resulted i n heightening the accusations and demands of the maternal family who were cri tical of the care Lillion received prior to her death and now likely hold Hamilton respon sible. Hamilton was given custody of his child for reasons not contained within the recor d. Persons who objected to that decision will likely hold him responsible for Lillion's death and may rely on newspaper articles to support their position and justify their threats. While such an emotional reaction is expected, it cannot serve to alter the fa ct that the appellee's articlesMuskingum County, Case No. CT2020-0028 15

were not "of and concerning" Hamilton and that the statements a re subject to an innocent construction that prevents them from supporting a claim of defa mation. {¶35} The first assignment of error is denied.

II

. {¶36} Hamilton claims the trial court erred when it found that the st atements he claimed were defamatory were not defamatory as a matter of law. The trial court's conclusion that the statements were not defamatory as a matter of law is directly tied to its holding that the innocent construction rule applies to the statements. In our review of the first assignment of error, we held that the statements were not defamatory because, under the innocent construction rule, a reasonable and non-defa matory meaning can be derived from the totality of the circumstances described in the pleadings. Consequently, we have found that the statements described in the complaint ar e not, as a matter of law, defamatory. The second assignment of error is therefore moot a nd further analysis is

unnecessary.Muskingum County, Case No. CT2020-0028 16

{¶37} The decision of the Muskingum County Court of Common Pleas is a ffirmed.

By: Baldwin, J. Delaney, P.J. and Wise, Earle, J. concur.