[Cite as Niotti-Soltesz v. Piotrowski, 2017-Ohio-711.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

TRUMBULL COUNTY, OHIO 

HOLLY NIOTTI-SOLTESZ, : O P I N I O N 

 Plaintiff-Appellant, : 

 CASE NO. 2016-T-0072

 - vs - : 

MICHAEL W. PIOTROWSKI, et al., : 

 Defendants-Appellees. : 

Civil Appeal from the Trumbull County Court of Common Pleas. 

Case No. 2014 CV 00914. 

Judgment: Affirmed. 

Frank R. Bodor, 157 Porter Street, N.E., Warren, OH 44483 (For Plaintiff-Appellant). 

Dennis M. Pilawa and Kimberly A. Brennan, Rawlin Gravens & Pilawa Co., LPA, The 

Hanna Building, Suite 500, 1422 Euclid Avenue, Cleveland, OH 44115 (For 

Defendants-Appellees). 

TIMOTHY P. CANNON, J. 

{¶1} Appellant, Holly Niotti-Soltesz, appeals from a judgment entry of the 

Trumbull County Court of Common Pleas granting summary judgment in favor of 

appellees, Attorney Michael W. Piotrowski and his employer, the Fraternal Order of 

Police Ohio Labor Council Inc. (“FOP/OLC”). For the following reasons, the trial court’s 

judgment is affirmed. 

{¶2} In July 2013, Attorney Piotrowski was representing Mr. Robert Wolford, a 

member of the Ashtabula Police Department, in an ongoing labor dispute with the city of 
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Ashtabula. Mr. Wolford was being investigated for an incident that occurred in 2010. 

Ms. Niotti-Soltesz was contracted by the city of Ashtabula to administer a polygraph 

examination to Mr. Wolford. 

{¶3} On July 3, 2013, Attorney Piotrowski informed Ms. Niotti-Soltesz that he 

had filed an unfair labor practice complaint against her and the city of Ashtabula. 

{¶4} On July 9, 2013, Mr. Wolford arrived at Ms. Niotti-Soltesz’s place of 

business to sit for his polygraph examination. Attorney Piotrowski was also present, as 

were Lori Lamer, Ashtabula’s Assistant City Solicitor, and Lieutenant Parkomaki, on 

behalf of Ashtabula’s Chief of Police. Before the examination commenced, words were 

exchanged between Ms. Niotti-Soltesz and Attorney Piotrowski; they disagreed over a 

form Mr. Wolford was asked to sign and whether Attorney Piotrowski could be present 

in the room while his client was being examined. Appellees do not deny that Attorney 

Piotrowski said the following to Ms. Niotti-Soltesz during this exchange: “You just don’t 

seem to be bright enough to understand what I’m saying”; “I will not show you any 

respect. You are a polygraph operator. You are simply a con artist. Why should I show 

you respect?” This exchange was also audio recorded. 

{¶5} Appellant filed a complaint against appellees, alleging causes of action for 

slander per se and slander per quod. She specifically complained that the statement, 

“you are simply a con artist,” was false, slanderous, defamatory, and uttered without 

privilege. She stated, “[i]t impugned [her] good character and reputation in the 

community and demeaned her reputation as an accredited polygraph examiner.” 

{¶6} Appellees answered and subsequently filed a motion for summary 

judgment. Appellant filed a partial motion for summary judgment, in which she 

requested the trial court declare the statements to be slanderous as a matter of law and 
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have a jury determine damages. The trial court granted summary judgment in favor of 

appellees. 

{¶7} Appellant filed a timely appeal and raises four assignments of error: 

[1.] The trial court erred and abused its discretion in finding the 

statement “you are simply a con artist” as being an opinion of the 

profession in general and appellant’s position in that profession and 

not a fact stated as the truth. 

[2.] The trial court erred and abused its discretion in finding that 

there were no verifiable facts on which to interpret the veracity of 

Appellee Piotrowski’s statement. 

[3.] The trial court erred and abused its discretion in determining 

that the general context and of the discussion and a prior 

disagreement involving a purported ULP filing on behalf of Officer 

Wolford required it to classify Piotrowski’s statement to be opinion 

rather than fact. 

[4.] The trial court erred and abused its discretion in failing to 

consider in the general and broader context in which the statement 

appeared that the Appellee Attorney (Piotrowski) was bound by 

professional rules of conduct that prohibit derogatory remarks to 

third persons; knowingly make a false statement of material fact or 

law to a third person; and his failure to retract the statement. 

{¶8} Summary judgment is proper when 

(1) [n]o genuine issue as to any material fact remains to be 

litigated; (2) the moving party is entitled to judgment as a matter of 

law; and (3) it appears from the evidence that reasonable minds 

can come to but one conclusion, and viewing such evidence most 

strongly in favor of the party against whom the motion for summary 

judgment is made, that conclusion is adverse to that party. 

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing Civ.R. 56(C). 

{¶9} “[T]he moving party bears the initial responsibility of informing the trial 

court of the basis for the motion, and identifying those portions of the record before the 

trial court [e.g., pleadings, depositions, answers to interrogatories, etc.] which 

demonstrate the absence of a genuine issue of fact on a material element of the 
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nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996), citing Civ.R. 

56(C) and Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986). If the moving party 

satisfies this burden, the nonmoving party has the burden to provide evidence 

demonstrating a genuine issue of material fact, pursuant to Civ.R. 56(E). Id. at 293. 

When considering a motion for summary judgment, the trial court 

may not weigh the evidence or select among reasonable 

inferences. Rather, all doubts and questions must be resolved in 

the non-moving party’s favor. Hence, a trial court is required to 

overrule a motion for summary judgment where conflicting evidence 

exists and alternative reasonable inferences can be drawn. 

McCarthy v. Lordstown, 11th Dist. Trumbull No. 2014-T-0050, 2015-Ohio-955, ¶7, citing 

Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 121 (1980); Murphy v. 

Reynoldsburg, 65 Ohio St.3d 356, 359 (1992); and Pierson v. Norfork S. Corp., 11th 

Dist. Ashtabula No. 2002-A-0061, 2003-Ohio-6682, ¶36. 

{¶10} On appeal, we review a trial court’s entry of summary judgment de novo, 

i.e., “independently and without deference to the trial court’s determination.” Brown v. 

Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 711 (4th Dist.1993) (citation omitted); 

see also Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996) (citation omitted). 

{¶11} Appellant’s assignments of error all relate to the summary judgment 

granted in favor of appellees on appellant’s cause of action for defamation. 

{¶12} Defamation is a false publication of fact, made with some degree of fault, 

that causes injury to a person’s reputation; exposes that person to public hatred, 

contempt, ridicule, or shame; or adversely affects that person in his or her trade or 

business. See Straus v. Doe, 11th Dist. Lake No. 2003-L-082, 2004-Ohio-5316, ¶26 

and Jacobs v. Budak, 156 Ohio App.3d 160, 2004-Ohio-522, ¶20 (11th Dist.) (citations 
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omitted). Oral defamation is referred to as slander. Straus, supra, at ¶26 (citation 

omitted). 

{¶13} Slander per quod refers to a statement with a facially innocent meaning 

that becomes defamatory via interpretation or innuendo. Id. at ¶27 (citation omitted); 

see also Becker v. Toulmin, 165 Ohio St. 549, 556 (1956). A plaintiff must prove 

special damages to succeed on a claim for slander per quod. See Schoedler v. 

Motometer Gauge & Equip. Corp., 134 Ohio St. 78, 84 (1938). 

{¶14} Slander per se, on the other hand, is unambiguously defamatory on its 

face. Becker, supra, at 553. To be actionable as slander per se, the oral statement 

“‘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.’” 

Straus, supra, at ¶28, quoting Hughs v. Fordeley, 11th Dist. Trumbull No. 99-T-0115, 

2000 WL 895593, *2 (June 30, 2000), citing Schoedler, supra, at 84. “Where facts 

demonstrate that the slanderous statements meet these criteria, general damages and 

malice are presumed as a matter of law.” Id. (citation omitted). 

{¶15} Our initial inquiry is whether the statement at issue is one of fact or 

opinion. Jacobs, supra, at ¶21; see also Wampler v. Higgins, 93 Ohio St.3d 111, 117 

(2001), citing Vail v. Plain Dealer Publishing Co., 72 Ohio St.3d 279, 281-282 (1995). 

{¶16} “‘“(S)ociety has a pervasive and strong interest in preventing and 

redressing attacks upon reputation.”’” Mehta v. Ohio Univ., 194 Ohio App.3d 844, 2011-

Ohio-3484, ¶27 (10th Dist.), quoting Feldman v. Bahn, 12 F.3d 730, 733 (6th Cir.1993), 

quoting Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). Nevertheless, statements of 

opinion are generally protected under Article I, Section 11, of the Ohio Constitution, 
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which provides: “Every citizen may freely speak, write, and publish his sentiments on all 

subjects, being responsible for the abuse of the right; and no law shall be passed to 

restrain or abridge the liberty of speech, or of the press.” See Wampler, supra, at 113-

114, citing Vail, supra, at 280, and Scott v. News-Herald, 25 Ohio St.3d 243, 245 

(1986); see also Jacobs, supra, at ¶21-22. “Therefore, what is required is a delicate 

balance between the constitutional protections afforded to the free expression of ideas 

and the protections afforded to an individual’s reputation under defamation laws.” 

Mehta, supra, at ¶27 (citations omitted). 

{¶17} “[T]he determination as to whether an alleged defamatory statement is an 

opinion or fact is a question of law for this court to resolve.” Jacobs, supra, at ¶23, 

citing Scott, supra, at 250. 

{¶18} “‘When determining whether speech is protected opinion a court must 

consider the totality of the circumstances. Specifically, a court should consider: the 

specific language at issue, whether the statement is verifiable, the general context of 

the statement, and the broader context in which the statement appeared.’” Verich v. 

Vindicator Printing Co., Inc., 152 Ohio App.3d 127, 2003-Ohio-1210, ¶12 (11th Dist.), 

quoting Vail, supra, at syllabus, following the four-factor test adopted in Scott, supra. 

“The weight given to any one factor under this inquiry will vary depending on the 

circumstances of each case.” Wampler, supra, at 126, citing Vail, supra, at 282. 

Applying this four-factor test assists courts in determining “the actionability of those 

statements that fall on the spectrum somewhere between paradigmatic statements of 

fact (such as ‘Mr. Jones had ten drinks at his office party and sideswiped two vehicles 

on his way home’) and paradigmatic statements of opinion (such as ‘Mr. Jones is a 
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despicable politician’).” Id., quoting Ollman v. Evans, 750 F.2d 970, 978 (D.C. 

Cir.1984). 

{¶19} “The meaning of an allegedly defamatory statement is the meaning that a 

reasonable listener would attach to the statement. The question for the court to 

determine is whether a reasonable listener would interpret the words used to be 

language that normally conveys factual information or mere hyperbole or opinion.” 

Brown v. Lawson, 169 Ohio App.3d 430, 2006-Ohio-5897, ¶17 (1st Dist.), citing Jorg v. 

Cincinnati Black United Front, 153 Ohio App.3d 258, 2003-Ohio-3668, ¶13 (1st Dist.), 

citing McKimm v. Ohio Elections Comm., 89 Ohio St.3d 139, 143 (2000); and Worldnet 

Software Co. v. Gannett Satellite Information Network, Inc., 122 Ohio App.3d 499, 505 

(1st Dist.1997), citing Vail, supra, at 282. 

{¶20} The oral statement appellant claims was slanderous is “you are simply a 

con artist.” The trial court held this statement was one of opinion, not fact, and therefore 

is protected speech as a matter of law. We agree. 

{¶21} The first of the four factors we will consider is the specific language used. 

We must determine whether a reasonable listener could consider “the words used to be 

language that normally conveys information of a factual nature or [hyperbole] and 

opinion; whether the language has a readily ascertainable meaning or is ambiguous.” 

Vail, supra, at 282. A listener is “‘less likely to infer facts from an indefinite or 

ambiguous statement than one with a commonly understood meaning.’” Wampler, 

supra, at 128, quoting Ollman, supra, at 979. Thus, “statements that are ‘loosely 

definable’ or ‘variously interpretable’ cannot in most contexts support an action for 

defamation.” Id., citing Ollman, supra, at 980. 
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{¶22} The specific language complained of being slanderous is “you are simply 

a con artist.” The commonly understood meaning of “con artist,” regardless of the 

context, is pejorative and refers to a person who deceives others by cheating, tricking, 

lying, etc. See, e.g., Oxford English Dictionary, http://www.oed.com (“a person who 

cheats or tricks others by persuading them to believe something that is not true”); 

Cambridge English Dictionary, http://dictionary.cambridge.org/us (“a person who 

deceives other people by making them believe something false or making them give 

money away”); and Merriam Webster Dictionary, https://www.merriam-webster.com (“a 

person who tricks other people in order to get their money”). Standing alone, this 

specific language is definite and unambiguous. Thus, this factor weighs in favor of 

finding the statement a fact, not an opinion. 

{¶23} The next two factors we consider are the immediate context of the “con 

artist” statement, as well as the broader social context. Courts must look at the 

combined statements made by appellee and the nature of the exchange in order “to 

assess the ‘larger objective and subjective context of the statement.’” Gilson v. Am. 

Inst. of Alternative Medicine, 10th Dist. Franklin No. 15AP-548, 2016-Ohio-1324, ¶63, 

quoting Scott, supra, at 252. In other words, we must “determine whether the ‘language 

surrounding the averred defamatory remarks may place the reasonable [listener] on 

notice that what is being [heard] is the opinion of the [speaker].’” Mehta, supra, at ¶39, 

quoting Wampler, supra, at 130. Some types of speech signal to the listener the 

likelihood of a statement being either fact or opinion. Gilson, supra, at ¶65, citing 

Wampler, supra, at 131, citing Ollman, supra, at 983. 
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{¶24} Appellant provided the trial court with a copy of the audio recording and a 

certified partial transcript of the recording made from a CD provided by appellant to the 

registered court reporter. The relevant portion reads as follows: 

MR. PIOTROWSKI: I will not show you any respect. You are a 

polygraph operator. You are simply a con artist. Why would I show 

you respect? 

MS. NIOTTI-SOLTESZ: Let me tell you defamation of character 

and slander is also grounds for a lawsuit. 

MR. PIOTROWSKI: Feel free. Feel free. 

MS. NIOTTI-SOLTESZ: You will not call me a con artist, and you 

will not disrespect me. 

MR. PIOTROWSKI: Your whole profession is con artistry. It is 

witch doctory. It is false, unscientific and bogus. So you can say 

whatever you want. You can pretend to be a lawyer all you want. 

You are not a lawyer. Your chosen profession is a joke, and there 

is no reason we are going to waive our right to sue you when you 

are about to violate the law. 

MS. NIOTTI-SOLTESZ: How am I about to violate the law? 

MR. PIOTROWSKI: You are about to demand that you interview 

Mr. Wolford, Officer Wolford, without me being in the room. 

MS. NIOTTI-SOLTESZ: That’s not the case. I am allowing you to 

be in the room. 

MR. PIOTROWSKI: What room? 

MS. NIOTTI-SOLTESZ: The polygraph room. I’m making that 

concession. 

MR. PIOTROWSKI: Okay then. Now let’s move on to the next 

step. 

{¶25} Many of these surrounding comments are clearly statements of hyperbole 

and opinion. The words indicate anger and frustration spoken with a purpose of 

invoking an emotional response from appellant, as opposed to conveying a factual 
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message to third parties. This immediate context would also lead a reasonable listener 

to understand that Attorney Piotrowski was likening the profession of polygraph operator 

to that of a con artist and that appellant, as a member of said profession, was therefore 

undeserving of his respect. It is undisputed that the statement was made during an 

ongoing disagreement between the parties regarding the specifics of appellant 

administering a polygraph examination to Attorney Piotrowski’s client. Additionally, 

Attorney Piotrowski had filed an unfair labor practice complaint that named appellant as 

a defendant only six days prior to the heated exchange. This broader context indicates 

a reasonable listener would have understood the “con artist” statement to be the 

product of uncontrolled emotion and unfounded opinion, as opposed to factual and 

personal knowledge regarding the veracity of the statement. These factors weigh 

against finding the statement to be one of fact. 

{¶26} The final factor is whether the “con artist” statement is verifiable, i.e., 

whether it is “objectively capable of proof or disproof.” Wampler, supra, at 129. “‘Does 

the author imply that he has first-hand knowledge that substantiates the opinions he 

asserts?’” Jacobs, supra, at ¶45 (emphasis sic), quoting Vail, supra, at 283. If a 

“‘“statement lacks a plausible method of verification, a reasonable reader will not believe 

that the statement has specific factual content.”’” Id., quoting Scott, supra, at 251-252, 

quoting Ollman, supra, at 979. 

{¶27} Attorney Piotrowski did not imply that he had first-hand knowledge to 

substantiate that appellant, individually, is a con artist. Further, a reasonable listener 

would not believe that his asserted analogy between polygraph operators and con 

artists was based on specific factual content, especially when considering the 
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immediate and broader context in which the statements were made. We find this factor 

also weighs against finding the statement was one of fact. 

{¶28} Finally, we do not find merit with appellant’s argument that the trial court 

should have considered the Ohio Rules of Professional Conduct in determining whether 

the statement was fact or opinion. We agree with appellees that a breach of one’s 

professional obligations does not transform a protected statement of opinion into an 

actionable statement of defamatory fact. 

{¶29} After a de novo review, we agree with the trial court’s holding that the 

statement, “you are simply a con artist,” was an unverifiable statement of opinion made 

in the heat of the moment during a dispute between the parties. The conduct of 

Attorney Piotrowski, a member of the legal profession, was clearly out of order and 

unprofessional. Under the totality of the circumstances, however, the statement made 

by Attorney Piotrowski is a protected opinion as a matter of law. The trial court did not 

err in granting summary judgment in favor of appellees. 

{¶30} Appellant’s assignments of error are without merit. 

{¶31} The judgment of the Trumbull County Court of Common Pleas is hereby 

affirmed. 

CYNTHIA WESTCOTT RICE, P.J., 

COLLEEN MARY O’TOOLE, J., 

concur.