Joseph Gergley appeals a judgment from the Licking County Court of Common Pleas that granted Melissa Ackison's motion for a directed verdict on his counterclaims and dismissed his case. Concurrently, Ackison appeals several rulings, including a summary judgment in favor of Gergley and an order granting him fees and costs.
The case stems from a business relationship that began in early 2018 when Ackison hired Gergley for her U.S. Senate campaign, which ended with her defeat in the primary. Following their falling out in mid-2018, Ackison filed a complaint against Gergley in October 2019, citing multiple claims including defamation and false light invasion of privacy. Gergley responded with a counterclaim that included similar allegations.
Gergley moved for summary judgment, asserting that Ackison's claims were based on protected opinion and that she could not identify any false statements or prove actual malice. Ackison opposed the motion but later failed to respond to interrogatories, leading Gergley to file a motion to compel, which the court granted. The appellate court's judgment included partial affirmation, reversal, and remand of the lower court's decisions.
An evidentiary hearing was held on January 27, 2021, regarding Gergley’s request for fees and costs, resulting in an award of $912.50 for fees related to a motion to compel. On June 2, 2021, the trial court granted Gergley’s motion for summary judgment and later issued a nunc pro tunc order on June 3 to remove final appealable order language. Ackison filed a motion for reconsideration on June 7, 2021, which was denied on July 1, 2021. Gergley’s deposition took place on August 20, 2021, with the transcript filed on October 5, 2021. A jury trial on Gergley’s counterclaims began on October 7, 2021.
During the trial, Ackison, who hired Gergley for her 2018 U.S. Senate campaign, initially described him as credible and trustworthy but later expressed discomfort with him. She acknowledged providing a positive reference for Gergley at his request. Ackison claimed Gergley distributed drugs and alcohol to minors, referring to anyone underage as "little kids." She mentioned knowing of an incident involving a young woman who was inebriated and alluded to Gergley being fined for buying alcohol for minors. Ackison also testified that Gergley bragged about giving women date rape drugs, a claim she attributed to information from the Republican Party's flyers. However, she admitted she had no personal knowledge of Gergley distributing such drugs, relying instead on party communications.
Ackison stated that Gergley was fired from her campaign, specifically from Rebel Strategies, LLC, which was subsequently dissolved. She confirmed that her social media posts about Gergley being fired referred to this LLC and not to a campaign he worked on for her. Ackison also claimed Gergley had a documented history of abusing women, citing a woman named "Twinkle" in Alabama, whom Gergley allegedly harassed via disguised social media accounts. Although she initially could not provide a name during her deposition, she later acknowledged that her seven-hour deposition included multiple breaks.
Ackison denied publicly claiming that Gergley gave marijuana to a small boy but admitted to stating he was convicted of providing drugs and alcohol to children. She confirmed authorship of a social media post labeling Gergley as a "racist stalker" with a deep history of racism and predatory behavior. Ackison also commented on a post from her husband describing Gergley’s behaviors and affirmed her husband's report of Gergley to the Insurance Board for ethical violations, reinforcing that Gergley was in violation of multiple ethical rules and regulations.
During cross-examination, Ackison denied harboring hatred towards Gergley, citing her Christian beliefs, but admitted to losing her temper during a deposition, where she called him derogatory names. Gergley testified about his background as an insurance agency owner and political consultant, having moved to Licking County three to four years prior and being a former resident of Gahanna, Ohio.
Gergley ran for Gahanna City Council in 2011 and 2013, and for mayor in 2015 at age 26. In 2017, he sought a position with the Republican Central Committee in Franklin County, clarifying that while it is an elected role, it is not a public office. During his 2015 mayoral campaign, his opponent distributed attack ads falsely accusing him of offering date rape drugs at his birthday party, including a fabricated post from Gergley’s Facebook page. Gergley denied creating the post, which was criticized by the Columbus Dispatch as “insidious.” He acknowledged having a birthday party in 2009 but refuted claims of drug distribution.
Gergley faced allegations regarding supplying alcohol to minors; he admitted to being cited for supplying alcohol at a tailgate party while in college. Regarding accusations of attending a high school prom as an adult, he clarified that he attended proms during his own high school years and had a brief encounter with law enforcement while giving a ride to a friend’s younger brother.
He denied any history of abusing women, addressing an accusation involving a woman named Twinkle, who was connected to his business partner. Gergley noted that after his relationship with Ackison soured, Ackison accused his partner of creating false accounts about Twinkle. Furthermore, Gergley stated he has never been under investigation by law enforcement and filed a police report against Ackison on August 4, 2019.
Gergley testified that Ackison's actions, including late-night communications with his business partner and clients, a false cease and desist letter, hiring a private investigator to confront him at home, and making veiled threats on social media, negatively affected his political consulting business, prompting him to temporarily cease operations in Ohio. Despite Ackison claiming to have fired him, Gergley maintained he had not been terminated. After Gergley presented his case, the trial court granted Ackison's motion for a directed verdict, concluding that Gergley was a limited purpose public figure and had not demonstrated that Ackison acted with actual malice. Consequently, the court dismissed Gergley's counterclaims, as memorialized in a judgment entry on October 12, 2021. Gergley appealed, raising issues related to his status as a public figure, the actual malice standard, and failure to prove damages in his defamation claims. Meanwhile, Ackison appealed several rulings, including the grant of summary judgment in Gergley's favor and the award of attorney's fees, asserting that genuine issues of material fact precluded summary judgment. Ackison's appeal was addressed first by the court for chronological clarity, emphasizing the de novo standard of review for summary judgment.
Civ.R. 56 outlines the criteria for granting summary judgment, requiring the trial court to find no genuine issues of material fact, entitlement to judgment as a matter of law by the moving party, and a conclusion that is adverse to the nonmoving party when evidence is viewed favorably for them. The moving party must demonstrate the absence of material fact issues and cannot rely on mere assertions. If the moving party meets this initial burden, the nonmoving party must then present specific facts indicating a genuine issue for trial; failure to do so allows for summary judgment against them. In defamation cases, where the determination of defamatory statements is a legal question, plaintiffs must prove five elements: a false statement of fact, defamatory nature, publication, injury as a result of publication, and requisite fault by the defendant. Defamation can be classified as libel (written) or slander (spoken). Public figures additionally need to show that the defendant acted with actual malice.
Actual malice is defined as making a statement with knowledge of its falsity or with reckless disregard for the truth, as established in the case of *Murray v. Chagrin Valley Publishing Co.* Ackison, recognized as a public figure, testified during her deposition that Gergley created several anonymous social media accounts, such as “MAGA Brown,” “Not Ohio GOP,” and “Ohio Trump Train,” which were used to harass and disparage her.
Ackison described the content of these accounts as primarily harassment, including name-calling and manipulated photographs. When asked about specific false statements made by Gergley, Ackison emphasized that he inaccurately labeled her as a "fake conservative" and claimed she was not mixed race, despite her being recognized as one of the most conservative politicians in Ohio by various organizations. She asserted that these statements were untrue and damaging to her reputation.
During further questioning, Ackison reiterated her belief that Gergley was behind the content on the "Not Ohio" site, citing specific information that only Gergley could know. She stated that most content on the "Ohio Trump Train" account was false, particularly regarding her racial background and political identity. Ackison acknowledged that while public figures are subject to opinion, they are not permitted to be targeted through a coordinated pattern of harassment across multiple platforms.
Ackison's deposition reveals she could not identify any specific false statements made by Gergley, which is a critical element for her defamation claim. Despite being asked multiple times, she acknowledged that all comments were politically related and could not recall any non-political remarks attributed to Gergley. Ackison's assertion of having been labeled a "fake conservative" and questioned about her racial identity were the only examples she provided. The court notes that her failure to demonstrate all necessary elements for her case leads to the dismissal of her claims.
In response to Gergley’s motion for summary judgment, Ackison submitted an affidavit intended to create a genuine issue of material fact. However, the court emphasized that an affidavit contradicting prior deposition testimony must provide a sufficient explanation for the inconsistency, which Ackison did not adequately accomplish. While her affidavit included 19 alleged false statements made by Gergley, the court found these claims to extend beyond merely supplementing her prior testimony, indicating a lack of credibility in her assertions.
Ackison's affidavit did not indicate confusion during her deposition nor provide an explanation for contradictions in her testimony, leading to the conclusion that it could not create a genuine issue of material fact to counter Gergley's motion for summary judgment. Consequently, her deposition served as the sole Civ. R. 56(C) quality evidence before the trial court. Ackison claimed that Gergley’s police report alleging telephone harassment constituted defamation with actual malice, asserting the report was fabricated and intended to harm her political campaign. However, Gergley’s deposition testimony—unavailable during the trial court's ruling—indicated a lack of communication between the parties prior to the report, limiting the appellate court's review to the record at the time of judgment.
Gergley argued that Ackison’s claims were based on statements protected as opinion speech concerning a public figure, a point Ackison did not address in her opposition to summary judgment. As a result, she waived her right to raise this argument on appeal. The appellate court found no error in the trial court's summary judgment favoring Gergley and overruled Ackison's first assignment of error. In her second and third assignments of error, Ackison contended that any awarded attorney fees should be reduced due to insufficient evidence of their reasonableness or necessity. The review of sanctions related to discovery rule compliance is conducted under an abuse-of-discretion standard.
A trial court possesses broad discretion to impose sanctions for discovery rule violations, as established in Yellowbook, Inc. v. L. Patrick Mulligan. The court's decision is upheld unless it is deemed arbitrary, unreasonable, or unconscionable, following the standard set in Blakemore v. Blakemore. In this case, the trial court was found not to have abused its discretion by ordering Ackison to compensate Gergley for her discovery violations.
The Ohio Supreme Court’s two-part test for determining "reasonable" attorney fees involves first calculating the total by multiplying the hours worked by a reasonable hourly rate. This serves as an initial estimate of the attorney's services. The trial court may then adjust this amount based on factors outlined in Prof. Cond. R. 1.5(a), including the complexity of the legal questions, the experience of the attorneys, and whether the fee is fixed or contingent. The burden of proving the reasonableness of attorney fees lies with the requesting party, who must provide sufficient evidence, such as affidavits or testimony, to support their claim.
Ackison contends that many hours billed for attorney fees pertain to routine tasks, including frequent follow-up communications, and argues that the hourly rate sought conflates the skills required for this case with those needed for more complex matters. Furthermore, Ackison asserts that a significant portion of the billed fees was due to travel time, which should be significantly discounted. However, the court disagreed with these assertions.
At the January 27, 2021 hearing on Gergley’s motion for attorney fees, Attorney Patrick Kasson presented his billing statement, indicating that the time entries were made contemporaneously by the person performing the work. Kasson estimated a half-hour travel time to the hearing, which he added to the bill. Attorney Rocky Ratliff, representing Ackison, cross-examined Kasson, focusing on the five hours Kasson spent drafting the motion to compel and his travel time for that day. The trial court ultimately awarded $912.50 in attorney fees, concluding that the requested amount was reasonable and commensurate with the work performed, which included drafting motions and necessary travel. The court noted that the fact Kasson performed the work, rather than delegating it to a paralegal, did not render the fees unreasonable.
Regarding Gergley’s first assignment of error, the court found that the trial court erred in categorizing him as a limited-purpose public figure and applying the actual malice standard to his counterclaims. The classification of a plaintiff in defamation cases—private person, public official, public figure, or limited-purpose public figure—affects the burden of proof. A limited-purpose public figure is someone who voluntarily engages in a public controversy to influence its outcome. This classification requires examining the individual's involvement in the controversy and their general notoriety within the community. The court emphasized that a plaintiff does not become a limited-purpose public figure simply because the defamatory statements create a controversy; the controversy must exist prior to the statements. A public controversy is defined as one that has received public attention due to its potential impact on the public or a segment of it.
Mr. Gergley is determined to be at least a limited public figure due to his previous candidacy for public office and the extensive coverage of his political activities, including critical articles and campaign ads. Despite his voluntary participation in politics, the court emphasizes that the controversy related to the alleged defamation stemmed from specific social media posts by Ackison, which did not exist prior to her statements. The court concludes that the trial court incorrectly classified Gergley as a limited purpose public figure in this context, asserting that past political activity does not automatically confer public figure status indefinitely. Consequently, the trial court's judgment in one case is affirmed while being reversed in another, with the matter remanded for further proceedings.
