[Cite as Weaver v. Deevers, 2021-Ohio-3791.]

IN THE COURT OF APPEALS OF OHIO 

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY

GRETCHEN A. WEAVER, et al., 

 Plaintiffs-Appellants, 

 - v - 

MATTHEW DEEVERS, et al., 

 Defendants-Appellees. 

CASE NO. 2020-P-0087

Civil Appeal from the 

Court of Common Pleas 

Trial Court No. 2019 CV 00718 

O P I N I O N 

Decided: October 25, 2021 

Judgment: Affirmed 

John C. Fickes, Roderick Linton Belfance, LLP, 50 S. Main Street, 10th Floor, Akron, 

OH 44308, and Emery J. Leuchtag, 526 S. Main Street, Suite 407, Akron, OH 44311 

(For Plaintiffs-Appellants). 

Thomas H. Cabral and Joseph Monroe, II, Gallagher Sharp, LLP, 1215 Superior Avenue, 

7th Floor, Cleveland, OH 44114 (For Defendants-Appellees Matthew Deevers and 

Shannon L. Deevers). 

Terrence J. Kenneally and Sean M. Kenneally, Terrence J. Kenneally & Associates, 

19111 Detroit Road, Suite 200, Rocky River, OH 44116 (For Defendants-Appellees 

Ginger E. Maines and Jeffrey K. Maines). 

James A. Climer, Frank H. Scialdone, and John D. Pinzone, Mazanec, Raskin & Ryder 

Co., LPA, 100 Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139 (For 

Defendants-Appellees Streetsboro City Schools Board of Education, Aireane Curtis, 

Brian Violi, John Kelly, and R. Michael Daulbaugh). 

THOMAS R. WRIGHT, J. 

{¶1} Plaintiffs—Gretchen A. & Thomas J. Weaver and Shane L. & Scott 

Ellsworth—appeal the trial court’s order granting summary judgment in favor of all 
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defendants—Matthew and Shannon L. Deevers (“the Deevers”); Ginger E. and Jeffrey K. 

Maines (“the Maines”); Streetsboro City Schools Board of Education (“the Board”); and 

R. Michael Daulbaugh, Aireane Curtis, Brian Violi, and John Kelly (collectively “the School 

Defendants”). 

{¶2} Mrs. Gretchen A. Weaver (“Weaver”) was a music teacher and the band 

director at Streetsboro High School from 2005 through September 2016. Mrs. Shane L. 

Ellsworth (“Ellsworth”) was a music teacher and the assistant band director at Streetsboro 

High School from 2001 through September 2016. R. Michael Daulbaugh and Aireane 

Curtis are Superintendent and Assistant Superintendent, respectively, of Streetsboro City 

Schools. In 2016, John Kelly was the President of the Board; in 2017, that role was filled 

by Brian Violi. 

{¶3} Each summer for the past 25 years, the high school band directors have 

conducted a marching band camp at Camp Muskingham in Carroll County. In 2016, the 

Deevers’ daughter M.D. was an incoming senior member of the band, and the Maines’ 

daughter S.M. was an incoming freshman member of the band. Both students attended 

the 2016 band camp, which was held from Friday, July 29, through Monday, August 1. 

{¶4} On August 1, 2016, a few hours after band camp had concluded, the 

Deevers sent an e-mail to Superintendent Daulbaugh; James Hogue, the high school 

principal; and Jeffrey Keruski, the intermediate school principal and a harassment 

compliance officer. The Deevers complained that hazing and harassment of students 

had occurred during band camp and requested a formal investigation of specific alleged 

violations of the Board’s anti-hazing and anti-harassment policies. 
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{¶5} The following day, Mrs. Maines called Superintendent Daulbaugh with a 

complaint about band camp. He requested she send her concerns in writing. Mrs. Maines 

then sent an e-mail to Superintendent Daulbaugh with a statement prepared by S.M. and 

edited by Mrs. Maines, describing various activities S.M. said had taken place at band 

camp and attributing various statements to Weaver and Ellsworth. Mrs. Maines 

additionally accused student leaders of bullying their classmates. 

{¶6} Board Policy 5517 prohibits “harassment,” which includes bullying; sexual 

harassment; harassment based on race, color, religious, creed, national origin, ancestry, 

or disability; and various other forms of conduct, communication, threats, insults, or 

dehumanizing gestures. Board Policy 5516 prohibits “hazing,” which is defined as 

“performing any act or coercing another, including the victim, to perform any act of 

initiation into any class, team, or organization that causes or creates a substantial risk of 

causing mental or physical harm. Permission, consent, or assumption of risk by an 

individual subjected to hazing shall not lessen the prohibitions contained in this policy.” 

Also, although the parents did not accuse the teachers of committing a crime, “hazing” 

could be prosecuted as a fourth-degree misdemeanor under former R.C. 2903.31, in 

effect at that time. 

{¶7} Superintendent Daulbaugh directed Assistant Superintendent Curtis to 

conduct the investigation under his supervision and with the assistance of retained 

counsel. Assistant Superintendent Curtis delivered a letter to Weaver and Ellsworth on 

August 4, 2016, informing them of a complaint against them regarding activities at band 

camp, to wit: 

The nature of the allegations are that the band camp has a 

culture of harassment, intimidation, teasing, and public 
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humiliation occurred [sic] during the 2016 band camp. Of 

specific concern are the senior skit night, the throwing of 

students into a lake by seniors, the ‘great swami’ skit 

performed by school staff members, the percussion section 

‘stitch-n-bitch’ skit, and the band camp salon skit. 

 

The letter provided that Weaver and Ellsworth could submit a written response within five 

business days and that they would be interviewed during an investigation regarding the 

complaint. 

{¶8} On August 9, 2016, notices of administrative suspension were sent to 

Weaver and Ellsworth relieving them of their duties, with pay, pending the outcome of an 

investigation into allegations that they had engaged in professional misconduct by 

participating in and condoning hazing and harassment activities. The letter directed 

Weaver and Ellsworth to turn in their school keys and instructed them not to speak of the 

matter with anyone associated with the school, excepting their union representatives. 

{¶9} News of the suspension began circulating on social media. On August 15, 

2016, Superintendent Daulbaugh issued a “robo-call” to parents of all students in the 

school district and posted a message to the school district website regarding the 

allegations and investigation, and also informing them that the district was finalizing the 

hiring of an interim band director. News reports began to appear on television and in 

newspapers and online publications. A formal and public meeting of the Board took place 

on August 17, 2016, during which Board President Kelly read a statement regarding the 

allegations and investigation. 

{¶10} Assistant Superintendent Curtis conducted various interviews over the next 

two months, and counsel for the school district conducted investigatory interviews of 

Weaver and Ellsworth in October 2016 with their union representatives present. None of 
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these interviews were transcribed or recorded. The Board subsequently retained Norman 

J. Pollard, Ed.D., to provide them with a report and opinion. He interviewed M.D. and 

S.M. by telephone; he did not interview Weaver or Ellsworth. Dr. Pollard’s professional 

opinion was that many of the activities constituted hazing in violation of Board policy and 

Ohio law, and that Weaver, Ellsworth, and other adults should be held accountable. 

{¶11} On December 15, 2016, Weaver and Ellsworth were provided written notice 

of the specific allegations against them. Through their union representative, they denied 

all allegations during an informal meeting with Superintendent Daulbaugh. Finally, in 

January 2017, the Board voted to suspend Weaver and Ellsworth from their duties without 

pay or benefits and to consider terminating their contracts. 

{¶12} Weaver and Ellsworth appealed the Board’s decision, pursuant to R.C. 

3319.16, and a hearing was held before an appointed referee over the course of 14 days. 

In the referee’s report of December 11, 2017, the referee found that although many of the 

complained of activities had occurred at the 2016 band camp, they did not rise to the level 

of hazing in violation of Board policy. The referee recommended restoring Weaver and 

Ellsworth to their positions and issuing lesser discipline for what he characterized as 

multiple instances of “fairly serious” misconduct in violation of other Board policies. 

{¶13} The Board held a special meeting on December 28, 2017. The Board 

reviewed the referee’s report and accepted some of the findings but ultimately voted to 

uphold its prior decision based on the referee’s conclusion that the teachers had engaged 

in multiple instances of “fairly serious” misconduct. 

{¶14} Weaver and Ellsworth filed original actions in the Portage County Court of 

Common Pleas, pursuant to R.C. 3319.16, challenging the Board’s decision. The 
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common pleas court summarily dismissed the actions, followed by findings of fact and 

conclusions of law, and this court affirmed. Ellsworth v. Streetsboro City School Dist. Bd. 

of Edn., 2019-Ohio-4731, 136 N.E.3d 549 (11th Dist.). 

{¶15} Neither Weaver nor Ellsworth has since found employment as a school 

teacher or school band leader. 

{¶16} On September 10, 2019, Weaver and Ellsworth, joined by their spouses, 

filed a complaint for money damages against the Deevers, the Maines, the Board, and 

the School Defendants. They alleged defamation, intentional infliction of serious 

emotional distress, civil conspiracy, and loss of consortium. During the course of 

discovery, depositions were taken of Weaver and Ellsworth, Superintendent Daulbaugh, 

Assistant Superintendent Curtis, and the Deevers’ daughter M.D. 

{¶17} Motions for summary judgment were filed by all defendants, which the trial 

court summarily granted. The court additionally held the Board was entitled to R.C. 

Chapter 2744 immunity on all claims. From this decision, appellants advance three 

assignments of error, arguing none of the defendants are entitled to judgment as a matter 

of law because genuine issues of material fact exist: 

[1.] The trial court erred in granting the School District’s motion 

for summary judgment. 

[2.] The trial court erred in granting the Deevers’ motion for 

summary judgment. 

[3.] The trial court erred in granting the Maineses’ motion for

summary judgment. 

{¶18} We review decisions awarding summary judgment de novo, i.e., 

independently and without deference to the trial court’s decision. Grafton v. Ohio Edison 
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Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996); Peer v. Sayers, 11th Dist. Trumbull 

No. 2011-T-0014, 2011-Ohio-5439, ¶ 27. 

{¶19} Summary judgment is appropriate only 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, 364 N.E.2d 267 (1977), citing Civ.R. 

56(C). The initial burden is on the moving party to set forth specific facts demonstrating 

that no issue of material fact exists and that the moving party is entitled to judgment as a 

matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If 

the movant meets this burden, the burden shifts to the nonmoving party to establish that 

a genuine issue of material fact exists for trial. Id. at 293. 

{¶20} Initially, “a claim for loss of consortium is derivative in that the claim is 

dependent upon the defendant’s having committed a legally cognizable tort upon the 

spouse who suffers bodily injury.” Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 92-93, 585 

N.E.2d 384 (1992). “Bodily injury” does not include non-physical harms such as 

emotional distress. Morgan v. Ent. Rent-A-Car, 11th Dist. Trumbull No. 98-T-0103, 2000 

WL 523085, *6 (Mar. 31, 2000), and Blatnik v. Avery Dennison Corp., 148 Ohio App.3d 

494, 2002-Ohio-1682, 774 N.E.2d 282, ¶ 95 (11th Dist.), citing Tomlinson v. Skolnik, 44 

Ohio St.3d 11, 14, 540 N.E.2d 716 (1989), overruled on other grounds, Bowman v. 

Holcomb, 83 Ohio App.3d 216, 218-219, 614 N.E.2d 838 (12th Dist.1992), and Vance v. 

Sang Chong, Inc., 11th Dist. Lake No. 88-L-13-188, 1990 WL 174121, *3 (Nov. 9, 1990). 
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Thus, because appellants did not allege bodily injury, or physical harm, to either Weaver 

or Ellsworth, defendants were entitled to summary judgment in their favor on the loss of 

consortium claims. 

{¶21} We next consider R.C. Chapter 2744, the Political Subdivision Tort Liability 

Act, applicable to political subdivisions and their employees. Appellants focus on the 

applicability of R.C. 2744.09(B), which provides that the immunity generally granted to 

political subdivisions does not apply to “[c]ivil actions by an employee * * * against his 

political subdivision relative to any matter that arises out of the employment relationship 

between the employee and the political subdivision[.]” This latter provision “‘is designed 

to protect employees by allowing them to recover against their employers, who would 

otherwise be entitled to immunity under R.C. Chapter 2744.’” Piazza v. Cuyahoga Cty., 

157 Ohio St.3d 497, 2019-Ohio-2499, 138 N.E.3d 1108, ¶ 12, quoting Sampson v. 

Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 418, 2012-Ohio-570, 966 N.E.2d 247, ¶ 

13. It is undisputed that Weaver’s and Ellsworth’s intentional tort claims are relative to a 

matter that arose out of their employment relationship with the Board. We therefore 

conclude that immunity does not extend to the Board. Although the trial court erred in 

holding otherwise, it is not dispositive to the appeal. 

{¶22} As employees of a political subdivision, the School Defendants are immune 

from liability unless “(a) [t]he employee’s acts or omissions were manifestly outside the 

scope of the employee’s employment or official responsibilities; (b) [t]he employee’s acts 

or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; 

or (c) [c]ivil liability is expressly imposed upon the employee by a section of the Revised 

Code.” R.C. 2744.03(A)(6); Kravetz v. Streetsboro Bd. of Edn., 11th Dist. Portage No. 
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2011-P-0025, 2012-Ohio-1455, ¶ 17. Although appellants have not specifically argued 

against application of these immunity exceptions to the School Defendants, appellants do 

contend that they acted with malice and, at times, in contravention of Board policies and 

procedures. Accordingly, a conclusion that the School Defendants are entitled to 

immunity necessarily depends upon whether appellants demonstrated a genuine issue of 

material fact as to the requisite level of culpability for their claims of defamation, intentional 

infliction of emotional distress, and civil conspiracy. 

{¶23} “The elements of the common-law action of defamation are (1) a false and 

defamatory statement concerning another; (2) an unprivileged publication to a third party; 

(3) fault amounting at least to negligence on the part of the publisher; and (4) either 

actionability of the statement irrespective of special harm or the existence of special harm 

caused by the publication.” (Citation omitted.) Weber v. Ferrellgas, Inc., 2016-Ohio4738, 68 N.E.3d 207, ¶ 42 (11th Dist.); also Hahn v. Kotten, 43 Ohio St.2d 237, 243, 331 

N.E.2d 713 (1975). 

{¶24} “Even in a case where a plaintiff has established a prima facie case of 

defamation, a defendant may invoke the defense of conditional or qualified privilege.” 

Lakota Loc. School Dist. Bd. of Edn. v. Brickner, 108 Ohio App.3d 637, 647, 671 N.E.2d 

578 (6th Dist.1996), citing A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & 

Constr. Trades Council, 73 Ohio St.3d 1, 7, 651 N.E.2d 1283 (1995) and Hahn at 243. 

“In a case where it is found that a conditional or qualified privilege does exist, the burden 

is on the plaintiff to demonstrate, by clear and convincing evidence, that the defamatory 

statements were made with ‘actual malice.’” Lakota at 647-648, citing Jacobs v. Frank, 

60 Ohio St.3d 111, 573 N.E.2d 609 (1991), paragraph two of the syllabus. “Where the 
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circumstances of the occasion for the alleged defamatory statement are not in dispute, 

the determination of whether there is a qualified privilege is a question of law for the trial 

court.” Lakota at 648, citing A & B-Abell Elevator at 7. 

{¶25} “‘A publication is privileged when it is ‘fairly made by a person in the 

discharge of some public or private duty, whether legal or moral, or in the conduct of his 

own affairs, in matters where his interest is concerned.’” A & B-Abell Elevator at 8, quoting 

Toogood v. Spyring, 149 Eng.Rep. 1044, 1049-1050, 1 C.M. & R. 181, 193 (1834). 

“A publication is conditionally or qualifiedly privileged where

circumstances exist, or are reasonably believed by the 

defendant to exist, which cast on him the duty of making a 

communication to a certain other person to whom he makes 

such communication in the performance of such duty, or 

where the person is so situated that it becomes right in the 

interests of society that he should tell third persons certain 

facts, which he in good faith proceeds to do. This general idea

has been otherwise expressed as follows: A communication 

made in good faith on any subject matter in which the person 

communicating has an interest, or in reference to which he 

has a duty, is privileged if made to a person having a 

corresponding interest or duty, even though it contains matter 

which, without this privilege, would be actionable, and 

although the duty is not a legal one, but only a moral or social 

duty of imperfect obligation.” 

Hahn at 245-246, quoting 33 American Jurisprudence, at 124 (1941) (Libel and Slander, 

Section 126). 

{¶26} Here, there is no dispute as to the circumstances under which the alleged 

defamatory statements were made or as to the exact content of those statements. On 

August 15, 2016, Superintendent Daulbaugh issued the following “robo-call” to every 

family in the school district: 

The band program has been suspended until we finish our 

investigation into claims that students may have been hazed, 

demeaned and belittled during the recent band camp. 
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I am aware of many postings on social media that would 

excuse the behavior as tradition or team building and group 

acceptance. Pushing underclass students into a lake at night 

in the dark without inquiring if they can swim, demeaning and 

mocking underclassmen in band camp skits and wrapping 

students in plastic wrap either to another student or to a tree

are unacceptable initiation traditions. While these kinds of 

hazing rituals may have been the pattern and practices for 

decades, they are in direct violation of the established School

Board policies. 

The Streetsboro schools have zero tolerance for hazing, 

bullying or conduct that is demeaning or belittling to students. 

The fact that some excuse it as steeped in tradition is 

irrelevant and frankly it’s disheartening. 

We are in the process of finalizing the hiring of an interim band 

director who can help get our students back on the field. I will 

be able to share more about this development after our 

upcoming School Board meeting. Band members are strongly 

encouraged to continue to practice their instruments until 

school resumes. 

As a former band member myself, I understand how important 

this program is to everyone in our District. We will do 

everything possible to resume the marching band program at 

Streetsboro High School as quickly as possible. I will continue

to keep you updated on this as information warrants. 

{¶27} Two days later, Board President Kelly made the following statement at a 

public board meeting: 

After hearing an update from our Superintendent and legal 

counsel regarding the status of the investigation into alleged 

hazing at Band Camp, I want to make a couple of comments 

before I open this up to the floor. 

 To date almost a dozen interviews have taken place. 

 The interviews credibly confirm that incidents that could be 

characterized as hazing took place at the 2016 Band 

Camp and likely occurred during previous band camps. 

Any type of hazing violates our Board Policy. 
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 Interviews have revealed that both this year and last year, 

upper classmen who characterize the conduct as “good 

fun” or “team building,” admit that some of the conduct got 

“out of hand.” 

 This investigation will continue and changes will be made 

to ensure this type of conduct does not recur. 

In closing, I want to say that your perspective as parents on 

this investigation depends on where you stand. If your child 

was part of the “in crowd” that relished in the behavior and 

looked with fondness toward the day when, as seniors, they 

would ascend to the position of “power,” as one social media 

commentator noted, then you are probably prepared to rail 

against our Superintendent’s actions in trying to get to the 

bottom of this matter. You will try to dismiss this as “good 

clean fun” and “rite of passage” stuff that builds character. 

Before you start down that road, I will tell you your perspective 

will stand in significant contrast to the parents of the children 

who felt frightened and intimidated by this conduct and went 

so far as to quit band because of it. Over the past two years 

14 students have quit band. Although we don’t know why all 

14 chose to quit we find the number concerning. 

There has been much said in the media about students being 

swim tested and wrist banded before participating in the lake 

toss. Based upon our investigation thus far we feel confident 

that at least two students without wristbands participated that

night and at least one could not swim. Additionally we feel 

confident based upon interviews that some students were 

picked up and thrown into the lake. 

As adults we know that there are lots of different kids walking

through our hallways. Confident kids with strong self-esteem 

and less confident kids struggling to find their place in our 

halls. This Board of Education, our Superintendent, 

Administrators, Teachers and staff are responsible for the 

safety of all of these children and we take this responsibility

seriously. 

So if you plan to dismiss our investigation because you think 

the alleged “hazing” sounds not “that bad” or just “good clean 

fun,” understand that your speech will not change our position 

that every child in our care deserves to be educated in a safe 

environment free from this type of activity. 
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“Team building” and developing “esprit de corps” can and 

must be done without abusing power over the underclass 

students who deserve to be treated with respect. To those 

parents and former band members who insist that “this is the 

way it’s always been” our message should be clear. This is 

not the way it will be in the Streetsboro City Schools from now

on. 

{¶28} There should be no dispute, and we conclude as a matter of law, that both 

statements were issued under occasions of qualified privilege. The Board, Daulbaugh, 

and Kelly have a duty to ensure the safety and welfare of the students in the school 

district. In the performance of that duty, the statements were communicated to parents 

in the school district to further their corresponding interest in the safety and welfare of 

their children. We likewise conclude that the Deevers’ e-mail and Mrs. Maines’ e-mail are 

protected under the inverse application of the same qualified privilege, as they have an 

interest in the safety and welfare of their children and communicated statements of 

concern to school officials with a duty to ensure the students’ safety and welfare. See, 

e.g., Daubenmire v. Sommers, 156 Ohio App.3d 322, 2004-Ohio-914, 805 N.E.2d 571, ¶ 

122 (12th Dist.), quoting McCartney v. Oblates of St. Francis deSales, 80 Ohio App.3d 

345, 356, 609 N.E.2d 216 (6th Dist.1992) (“‘[E]ducators and parents share a common 

interest in the training, morality and well-being of the children in their care.’”). 

{¶29} Moreover, appellants have not offered any evidence that the statements 

were not made in “good faith” or were made with “actual malice.” Statements are made 

with “actual malice” when they are made with knowledge that they are false or with 

reckless disregard as to their truth or falsity. Jacobs, 60 Ohio St.3d at 116. Thus, there 

must be a showing that the false statements were made with a high degree of awareness 
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of their probable falsity. Id. at 118. Further, the alleged defamatory statements must be 

viewed with regard to the subjective belief of the author. Id. at 119. 

{¶30} Appellants characterize Superintendent Daulbaugh’s statement as

“accus[ing] the SHS Marching Band directors of hazing, bullying, and harassing their 

students” and Board President Kelly’s statement as “‘credibly confirm[ing]’ that hazing 

had occurred at band camp.” This is not, however, an accurate or fair characterization. 

Daulbaugh did not accuse Weaver and Ellsworth of the hazing, demeaning, or belittling 

that was the subject of the Board’s investigation, and Kelly expressly stated that the 

incidents could be characterized as hazing and that the investigation would continue. 

There is no indication in either statement that the speakers believed Weaver and 

Ellsworth were the perpetrators of the behavior, as opposed to chaperones or student 

band leaders. 

{¶31} Appellants take issue with the Deevers and Mrs. Maines sending e-mail 

accusations without first inquiring of others who were at the band camp, particularly the 

adults, to corroborate the accounts of their daughters, who appellants describe as 

“sources [that] may not be inherently reliable.” Appellants contend this was reckless 

behavior, considering the gravity of the allegations. There is no evidence, however, that 

the Deevers or Mrs. Maines subjectively believed or had a high degree of awareness that 

any part of the information relayed by their daughters was probably false. 

{¶32} Appellants have not demonstrated that a genuine issue of material fact 

exists regarding lack of “good faith” or “actual malice” with respect to the Board, 

Daulbaugh, Kelly, the Deevers, or Mrs. Maines. Additionally, there are no statements at 
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issue made by Curtis, Violi, or Mr. Maines. Accordingly, summary judgment in favor of 

the defendants on the claim of defamation was proper. 

{¶33} “In a case for intentional infliction of emotional distress, a plaintiff must prove 

(1) that the defendant intended to cause the plaintiff serious emotional distress, (2) that 

the defendant’s conduct was extreme and outrageous, and (3) that the defendant’s 

conduct was the proximate cause of plaintiff’s serious emotional distress.” (Citation 

omitted.) Phung v. Waste Mgt., Inc., 71 Ohio St.3d 408, 410-411, 644 N.E.2d 286 (1994); 

Valentino v. Wickliffe City School Dist. Bd. of Edn., 11th Dist. Lake Nos. 2009-L-083 & 

2009-L-089, 2010-Ohio-5515, ¶ 48. “‘Whether conduct rises to the level of “extreme and 

outrageous” conduct constitutes a question of law.’” Krlich v. Clemente, 2017-Ohio-7945, 

98 N.E.3d 752, ¶ 26 (11th Dist.), quoting Jones v. Wheelersburg Local School Dist., 4th 

Dist. Scioto No. 12CA3513, 2013-Ohio-3685, ¶ 41; accord Morrow v. Reminger & 

Reminger Co., L.P.A., 183 Ohio App.3d 40, 2009-Ohio-2665, 915 N.E.2d 696, ¶ 48 (10th 

Dist.) (“Whether conduct is ‘extreme and outrageous’ is initially a question of law for the 

court.”). 

{¶34} In response to the motions for summary judgment, appellants recite 

examples of what they maintain are extreme and outrageous conduct, to wit: the Deevers 

and the Maines sending e-mails to the school administrators relaying information received 

from their daughters without further investigation; the School Defendants’ alleged 

departure from the Board’s anti-harassment policy and subsequent “broadcasting” of the 

alleged defamatory statements; and the “arbitrary management of the investigation, 

prosecution and judgment of the band directors.” These accusations are not sufficient 

operative facts to demonstrate that any of the defendants’ conduct, as a matter of law, 
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was “so outrageous in character, and so extreme in degree, as to go beyond all possible 

bounds of decency.” Yeager v. Local Union 20, 6 Ohio St.3d 369, 375, 453 N.E.2d 666 

(1983). Additionally, “[w]hen a privilege, qualified or absolute, attaches to statements 

made in a defamation action, those statements remain privileged for the purpose of 

derivative claims such as intentional infliction of emotional distress[.]” (Parallel citations 

omitted.) Gintert v. WCI Steel, Inc., 11th Dist. Trumbull No. 2002-T-0124, 2007-Ohio6737, ¶ 22, citing A & B-Abell Elevator, 73 Ohio St.3d at 15. Accordingly, summary 

judgment in favor of the defendants was proper on this claim. 

{¶35} Finally, “[a] civil conspiracy is a ‘“malicious combination of two or more 

persons to injure another, in person or property, in a way not competent for one alone.’” 

Wilk v. Discover Bank, 2019-Ohio-3842, 144 N.E.3d 1023, ¶ 53 (11th Dist.), quoting 

Mangelluzzi v. Morley, 2015-Ohio-3143, 40 N.E.3d 588, ¶ 54 (8th Dist.). “‘Thus, the

elements that comprise a claim of civil conspiracy are (1) a malicious combination; (2) 

two or more persons; (3) injury to person or property; and (4) existence of an unlawful act 

independent from the actual conspiracy. [A]n action for civil conspiracy cannot be 

maintained unless an underlying unlawful act is committed.’” (Internal citations omitted.) 

Wilk at ¶ 53, quoting Mangelluzzi at ¶ 54. As outlined above, appellants have not 

established that any of the defendants committed an underlying unlawful act. 

Accordingly, summary judgment in favor of the defendants on this claim was also proper. 

{¶36} Appellants’ assignments are without merit. The trial court did not err in 

granting the defendants’ motions for summary judgment and dismissing all claims with 

prejudice. 
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{¶37} The judgment of the Portage County Court of Common Pleas is affirmed. 

MARY JANE TRAPP, P.J., 

MATT LYNCH, J., 

concur.