Ackison v. Gergley

198 N.E.3d 139

Melissa ACKISON, Plaintiff-Appellee

v.Joseph GERGLEY, Defendant-Appellant

Nos. 2021 CA 00087 & 2021 CA 00089

Court of Appeals of Ohio, Fifth District, Licking County.

Date of Judgment Entry: September 29, 2022

J.C. RATLIFF, JEFF RATLIFF, ROCKY RATLIFF, Ratliff Law Office, 200 West Center Street, Marion, Ohio 43302, For Plaintiff-Appellee.

THOMAS SPYKER, Reminger Co., LPA, 200 Civic Drive – Suite #800, Columbus, Ohio 43215, For Defendant-Appellant.

JUDGES: Hon. Earle E. Wise, Jr., P.J., Hon. William B. Hoffman, J., Hon. Patricia A. Delaney, J.

OPINION

Hoffman, J.

{¶1} In Licking App. No. 21CA00087, Joseph Gergley ("Gergley") appeals the October 12, 2021 Judgment Entry entered by the Licking County Court of Common Pleas, which granted plaintiff-appellee Melissa Ackison's motion for directed verdict on Gergley's counterclaims and dismissed his case.

{¶2} In Licking App. No. 21CA0089, plaintiff-appellant Melissa Ackison ("Ackison") appeals the following rulings entered by the Licking County Court of Common Pleas: the June 2, 2021 Decision and Order Granting Defendant's Motion for Summary Judgment, the June 3, 2021 Nunc Pro Tunc Decision and Order Granting Defendant's Motion for Summary Judgment, July 1, 2021 Judgment Entry, and the February 2, 2021 Order Granting Defendant's Motion for Fees and Costs.

STATEMENT OF THE FACTS AND CASE

{¶3} Gergley owns and operates a small political consulting firm, which specializes in polling. In early 2018, Ackison hired Gergley to provide services for her United States Senate campaign. Ackison retained Gergley's services through the completion of her campaign, which ended when she was defeated in the primary. After the campaign, Gergley and Ackison discussed working together on other ventures. The parties dispute the nature of the business relationship and who approached whom. Gergley and Ackison had a falling out in July or August, 2018. The parties had no further communications with each other after that time.

{¶4} On October 14, 2019, Ackison filed a Complaint against Gergley, asserting causes of action for defamation, defamation by innuendo, slander, slander per se, libel, libel per se, and false light invasion of privacy. Gergley filed an answer and counterclaim on December 20, 2019, alleging causes of action for defamation, false light, malicious prosecution, and abuse of process. Ackison filed an answer to Gergley's counterclaim on January 17, 2020.

{¶5} Gergley conducted a deposition of Ackison on August 13, 2020, and filed a motion for summary judgment on December 15, 2020. Therein, Gergley argued Ackison's complaint fails as a matter of law because 1) the statements made by Gergley upon which Ackison bases her claims were opinion speech protected by Section 11, Article I of the Ohio Constitution ; 2) Ackison was unable to identify any false statements made by Gergley; 3) Ackison was unable to establish Gergley made false statements; and 4) Ackison was unable to prove Gergley published any false statements with actual malice. Ackison filed a Memorandum in Opposition to Summary Judgment on January 5, 2021.

{¶6} After Ackison failed to respond to interrogatories and produce documents, Gergley filed a Motion to Compel and for Fees and Costs on January 15, 2021. The trial court granted Gergley's motion to compel via Order filed January 20, 2021. The trial court scheduled an evidentiary hearing on Gergley's request for fees and costs for January 27, 2021. Following the hearing, the trial court awarded Gergley $912.50, for fees and costs associated with the filing of the motion to compel.

{¶7} Via Decision and Order filed June 2, 2021, the trial court granted Gergley's motion for summary judgment. The trial court issued a nunc pro tunc decision and order on June 3, 2021, to remove the final, appealable order language. Ackison filed a motion for reconsideration on June 7, 2021, which the trial court denied via Judgment Entry filed July 1, 2021.

{¶8} Gergley's deposition was conducted on August 20, 2021, and the transcript of such was filed October 5, 2021. The jury trial on Gergley's counterclaims commenced on October 7, 2021.

{¶9} At trial, Attorney Thomas Spyker, counsel for Gergley, called Ackison on cross-examination. Ackison testified she hired Gergley to perform certain services for her 2018 campaign for United States Senate. Ackison noted Gergely worked for three months at the end of the campaign during which time she found him credible and trustworthy. However, after the campaign ended and their relationship progressed, she grew "very uncomfortable with him." Trial Transcript, Vol. I, at 121. In a text message sent on June 11, 2018, following the 2018 primary election, Ackison told Gergley she had given a reference for him and "I told him you were completely trustworthy and there's nobody that I would trust to run anything for me other than you." Id. at 123-124. Ackison acknowledged she gave a positive reference for Gergley, but added she only did so at Gergley's request.

{¶10} When asked if she told people Gergley "gave drugs and alcohol to little kids," Ackison responded, "That he gave drugs and alcohol to little kids, minors. I'm a mom of four boys. Anybody underage is a minor to me, kid, little kid." Tr. at 128-129.

{¶11} The testimony continued:

Q. Okay, But, you specifically used the term "little kids," correct?

A. Well, yeah. I mean, they were teenage children. That's little kids.

Q. Okay. Do you know whether or not the person was a teenage child or a 20-year old?

A. I do. I actually know one of the relatives of one of the young woman [sic] who was so inebriated that she couldn't walk the night that he was in – you know, fined or ticketed or plead guilty to buying the alcohol for them.

* * *

Q. Okay. She's not a child though, right?

A. Well, you are a child if you're – if you're underage, you're a child.

Q. Okay. You told people that [Gergley] gave woman [sic] date rape drugs and bragged about it, correct?

A. Yes.

Q. Okay. You have no actual knowledge as to whether or not that's true.

A. I actually do. [Gergley], himself, thought it was hilarious. He told us about something called Twittergate and said that the Ohio Republican Party, that he was covered in state-wide media, that he was covered in papers, * * *

Q. Okay. Now, you've never actually seen that Facebook post, have you?

A. Yes, I have.

* * *

A. I'm fairly certain that it was used in the advertising. If not, there was a screenshot of it that was on social media. And if not that, I know one of the witnesses have the original post that will be here tomorrow.

Tr. Vol I at 129 – 131.

{¶12} Ackison subsequently refuted calling Gergley "a date rapist," but admitted saying he passed out date rape drugs to women, explaining she "took the information from the Republican Party that he passed out known date rape drugs to women, yes * * * from their flyers that were mailed out throughout the state." Id. at 133-134. When asked if she had any personal knowledge Gergley passed out date rape drugs to women, Ackison answered, "Only based on all of the television media, print media, and the Republican Party flyers." Id. at 134.

{¶13} When questioned about posts on her social media accounts stating Gergley was fired from her campaign, Ackison replied, "That [Gergley] was fired, yes. ** * Well, there was a campaign, it was Rebel Strategies, LLC, and it was dissolved and [Gergley] was fired and he was blocked from my phone, yes." Id. at 142. Attorney Spyker asked: "So, now you're telling us here that when you posted on your Facebook and on other social media that [Gergley] was fired from the campaign, you were not referring to the campaign that he worked on for you but you were referring to an LLC?" Ackison answered, "That's exactly what I'm telling you." Id.

{¶14} Ackison confirmed she stated Gergley had a well-documented history of abusing women. When asked to name a single woman Gergley had a well-documented history of abusing, Ackison mentioned a woman named "Twinkle," who was running for office in Alabama. Ackison explained Gergley harassed the woman through disguised social media accounts. Ackison added she, herself, also had been the victim of Gergley's targeted social media harassment. Attorney Spyker confronted Ackison with her answer to the same question during her deposition: "I cannot give you a single name." Id. at 146. Ackison acknowledged Attorney Spyker accurately read her deposition response, but added "[a]fter seven hours of deposition and multiple breaks, yeah, you did." Id.

{¶15} Ackison asserted she "never told anybody publicly that Mr. Gergley gave marijuana to a small boy," but admitted she did say he was convicted of giving drugs and alcohol to children. Id. at 148. When asked if she authored the following post about Gergley: "He's a racist stalker. A very deep history of racism and predatory behavior with women. Everyone know that it's him and his IP address has already been traced and tracked. His cohorts have already sold him out," Ackison replied, "Yes. He is a racist stalker." Id. at 259. In response to a post authored by her husband: "Well documented history of stalking woman [sic] and deviant behaviors. Lonely, lives with parents, stalks my wife, unkept," Ackison admitted she commented, "Predator." Id.

{¶16} Ackison testified her husband reported Gergley to the Insurance Board, alleging ethical violations. Ackison stated she authored the following Facebook post: "Joe was in violation of multiple ethic rules and regulations through the Ohio Insurance Board and Commissioners are also aware of the situation. Joe is extremely lonely, attention seeking, and has a very long history of troublesome behavior with woman." Id. at 262. In response to Attorney Spyker's question, "And you represented to the public that Joe was in violation of multiple ethic rules and regulations?", Ackison stated, "He is." Id.

{¶17} Ackison's cross-examination concluded with the following exchange:

Q. Fair to say you hate Mr. Gergley?

A. I

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