Thrifty Propane, Inc. v. Natl. Propane Gas Assn.

Citation: 2012 Ohio 6113Docket: 11CA0086-M

Court: Ohio Court of Appeals; December 25, 2012; Ohio; State Appellate Court

Original Court Document: View Document

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Thrifty Propane filed a lawsuit against the National Propane Gas Association, claiming defamation and malicious civil prosecution regarding the Association's complaints to the Ohio Attorney General about Thrifty's advertising practices. In response, the Association counterclaimed, asserting that Thrifty's litigation was frivolous and sought attorney fees. Thrifty also sued the Attorney General, attempting to prevent him from enforcing a compliance agreement. The trial court dismissed Thrifty's claims against the Attorney General, citing the Attorney General's statutory obligation to investigate deceptive advertising. It granted judgment on the pleadings to the Association, ruling that Thrifty's claims were barred by the statute of limitations and that the Association's communications to the Attorney General were privileged. The court also ruled in favor of the Association's counterclaim, determining Thrifty's claims were frivolous and ordering Thrifty to pay attorney fees. Thrifty appealed, arguing the trial court misapplied the statute of limitations and privilege regarding the Association's statements. The appellate court affirmed the trial court's decisions, confirming the Association's statements were protected by absolute privilege and that Thrifty was liable for the Association's attorney fees.

Thrifty argues that its claims regarding libel and malicious prosecution are timely, citing a one-year statute of limitations under R.C. 2305.11(A) despite the Association's prior complaints to the Attorney General in 2006 and 2008. Thrifty contends that it was unaware the Association triggered these complaints until early 2010, and thus believes its claims are valid. Thrifty acknowledges that complaints made to the Attorney General about deceptive advertising typically enjoy absolute privilege against civil liability, as established in M.J. DiCorpo Inc. v. Sweeney. However, Thrifty posits that the discovery of the Association's involvement suggests it communicated with a third party, which could nullify that privilege. This argument hinges on an allegation in Thrifty's amended complaint stating that upon learning of the Association's intent to complain to the Federal Trade Commission in 2010, Thrifty deduced that the Association had also filed complaints with the Attorney General in 2006 and 2008. Thrifty claims that the only way it could have received this information was through a third party to whom the Association allegedly made false statements about Thrifty's advertising.

However, the court finds that the language in the amended complaint does not substantiate Thrifty's argument. The statement suggests that Thrifty inferred the Association's involvement from an unspecified source regarding its Federal Trade Commission complaint, without identifying that source. This lack of clarity means that even if a third party provided information, it does not confirm that the Association communicated anything defamatory. Furthermore, even if the Association discussed its complaint with a third party, this alone does not support a libel claim, as a false statement of fact is necessary for such a claim, as indicated in Am. Chem. Soc. v. Leadscope Inc.

Thrifty's claim for malicious prosecution was dismissed because it failed to establish that revealing the existence of privileged communications negated the privilege itself, as affirmed by precedents indicating that such privilege is lost only through the voluntary disclosure of content. The trial court determined that the Association's communications to the Attorney General were protected by absolute privilege and could not support Thrifty's libel and malicious prosecution claims, leading to the overruling of Thrifty's first assignment of error. In its second assignment, Thrifty argued against the award of attorney fees to the Association, claiming the trial court's judgment on the pleadings was incorrect. However, since the court's ruling was upheld, this argument was also dismissed as without merit. The trial court's judgment in favor of the Association and its counterclaim was affirmed. The Medina County Common Pleas Court's judgment is mandated for execution, with costs assessed against Thrifty. The document serves as the journal entry of judgment, initiating the review period.

Agreement is expressed with the majority's judgment, but there is disagreement regarding the conclusion that the Association's communications to the Attorney General were absolutely privileged. The legal precedent referenced relates to the absolute privilege of notifying a prosecutor about a crime, as established in M.J. DiCorpo Inc. v. Sweeney, 69 Ohio St. 3d 497 (1994). However, the communications in question did not concern criminal activity, and absolute privilege is defined narrowly by the Ohio Supreme Court in Costanzo v. Gaul, 62 Ohio St.2d 106, 109 (1980). It is suggested that these communications were likely subject to a qualified privilege, but this issue does not need to be resolved as Thrifty had previously agreed that the reports were privileged during a hearing on the Attorney General's motion to dismiss. Although Thrifty later claimed the privilege was compromised by communications to a third party, it never contested the initial privilege of the reports, indicating they may have invited any error in the trial court's conclusion regarding privilege. Furthermore, Thrifty's amended complaint lacks clear allegations suggesting any privilege was broken and is overall confusing, making it difficult to identify its claims. There is no need to evaluate the survival of Thrifty's malicious prosecution claim against a motion for judgment on the pleadings, as Thrifty does not seem to challenge that ruling. Even assuming it were an issue, Thrifty failed to allege sufficient facts to support such a claim.