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Case No. 09-2000 Counsel for Appellants

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Case No. 09-2000 Counsel for Appellants IN THE SUPREME COURT OF OHIO KEVIN LONGINO, et al. Case No. 09-2000 Plaintiffs-Appellants On Appeal from the Hamilton V. County Court of Appeals First Appellate District RADIO ONE, INC. et al. Court of Appeals Defendants-Appel lees Case No: 08-0905 DEFENDANT-APPELLEE BLUE CHIP BROADCASTING, LTD.'S MEMORANDUM IN RESPONSE TO JURISDICTION Shondra C. Longino (00081874) Nathaniel Lampley, Jr. (0041543) sclongino7 @ aol.com [email protected] 14055 Cedar Road, Suite 310 Vorys, Sater, Seymour and Pease t-LP South Euclid, Ohio 44118 221 East Fourth Street Telephone: (216) 932-4444 Suite 2000, Atrium Two Fax: (216) 932-4434 Cincinnati, Ohio 45202 Telephone: (513) 723-4616 Counsel for Appellants Fax: (513) 852-7869 Counsel for Appellee Blue Chip Broadcasting, Ltd. Maria P. Vitullo (0080632) [email protected] Taft, Stettinius & Hollister LLP 425 Walnut Street, Suite 1800 Cincinnati, Ohio 45202 Telephone: (513) 381-2838 Fax: (513) 381-0205 Counsel for Appellee National Underground Railroad Freedom Center TABLE OF CONTENTS 1. STATEMENT OF THE CASE AND FACTS .............................. .................... ......... 't II. STATEMENT IN OPPOSITION TO JURISDICTION ..............................................3 III. BLUE CHIP'S RESONSE TO APPELLANT'S PROPOSITIONS OF LAW............4 A. RESPONSE TO APPELLANT'S PROPOSITION OF LAW NO. I ..............4 B. RESPONSE TO APPELLANT'S PROPOSITION OF LAW NOS. 2 and 3..4 C. RESPONSE TO APPELLANT'S PROPOSITION OF LAW NO. 4 . .............6 D. RESPONSE TO APPELLANT'S PROPOSITION OF LAW NO. 5 ..............7 IV. CONCLUSION ......... ...............................................................................................8 CERTIFICATE OF SERVICE........................................:.........................................9 I. STATEMENT OF THE CASE AND FACTS The essential facts are these. On February 3, 2007, WDBZ the Buzz, a dba of Defendarit-Appellee Blue Chip Broadcasting, Ltd. ("Blue Chip"), sponsored the Buzz Black Book Fair (the "Book Fair"). The Book Fair was a free, public, community event interided to promote literacy and cultural learning. The Buzz had sponsored these free community events in the Cincinnati area in the past, and had taken photos of members of the community who had attended. A photograph of Plaintiff-Appellants, Kevin Longino and his two minor children (collectively, "Appellants"), was published in a flyer used to prornote the Fourth Annual Book Fair. The flyer captured Appellants enjoying activities at a prior event but did not identify Appellants by name. Appellarits filed suit against, among others, Radio One, Inc. and three local radio stations, seeking $2 million dollars for photos taken at a free, public event. Counsel for Blue Chip subsequently notified Appellants' counsel that Blue Chip was the proper defendant to answer on behalf of the radio stations, given that Blue Chip owns arid operates the radio stations named in the suit, as well as Radio One. Blue Chip filed its answer on behalf of Radio One, which was incorrectly identified in the Complaint as Radio One, Inc., and two radio stations (The Buzz 1230 AM and MOJO 100.3 FM), but due to a clerical error, did not answer on behalf of 101.1 WIZF. On November 29, 2007, Appellants filed a motion for default judgment against Defendant 101.1 WIZ_F. On Saturday, December 1, 2007, counsel for Appellants agreed to withdraw the motion for default judgrnent against 101.1 WIZF, and further agreed to accept a corrected entry identifying Blue Chip as the only proper party defendant. On Monday, December 3, 2007, a proposed entry, as contemplated by counsel for both parties, was transmitted via e-mail to Appellants' counsel. Three days later, rather than signing the proposed entry, Appellants' counsel informed Blue Chip's counsel that her client wished to proceed with the motion for default judgment. Thus, on January 3, 2008, Blue Chip sought leave under Civ. R. 6(B) to file an answer out of time, and on January 10, 2008, filed a memorandum in opposition to the motion for default judgment. On April 17, 2008, Appellants filed a motion for default judgment against Radio One, Inc., claiming that Radio One, Inc, was in default, even though Blue Chip had answered on behalf of "Radio One ... incorrectly identified in the Complaint as Radio One, Inc." After considering the all the surrounding facts and circumstances, the trial court allowed 101.1 WIZF to file an answer out of time, denied Appellants' motions for default judgmerit against both 101.1 WIZF and Radio One, Inc., and granted Blue Chip's motiori to designate it as the proper party on behalf of Radio One and the radio stations. At the close of discovery, both parties moved for summary judgment. The trial court denied Appellant's motion for default judgment, granted Blue Chip's motion to file and answer out of time, and granted Blue Chip's motion for summary judgment, finding that because the photograph depicted Appellants as members of the public, Ohio law did not allow for recovery for misappropriation. Appellants appealed to the First District Court of Appeals (hereinafter, "First District"), setting forth substantially the same, although somewhat mutated, assignments of error as are presented here. The First District affirmed the trial court's decision and overruled all five assignments of error. 2 II. STATEMENT IN OPPOSITION TO JURISDICTION This garden variety misappropriation case is neither of substantial constitutional import nor of public or great general interest. Appellant's appeal, although difficult to follow, essentially focuses ori three decisioris made by the trial court: (1) the deriial of Appellants' rnotion for default judgment against defendants Radio One, Inc. and 101.1 WIZF; (2) the designation of Blue Chip as the only proper party defendant; and (3) the denial of Appellants' motions for sanctions. None of these involve issues that warrant this Court's involvement. Consequently, this Court should decline to take jurisdiction over this appeal. In an attempt to manufacture a substantial constitutional question, Appellants accuse the First District of malfeasance, claiming that the lower court "disregard[ed] and purposely misconstrue[ed] the civil rules" in violation of Article IV, Section 5(B).1 This claim is as contrived as it is outrageous. Article IV, Section 5(B) is not implicated by the First District correctly apptyirig the Ohio Rules of Civil Procedure to facts of this case. Appellants are merely unhappy litigants lashing out at the First District. For the same reasons, this case does not involve issues of public or great general interest. At the core of Appellant's rambling, largely incoherent brief, Appellants ask this Court to engage only in correction of perceived errors below. Holding aside the fact that the First District ruled correctly and made no error for this Court to correct, this Court does not sit for mere error correction.2 Thus, Blue Chip respectfully requests that this Court decline to accept this case for further consideration, ' Appellant's Memorandum in Support of Jurisdiction at p. 3. 2 Ohio Corist. Article IV, Section 2(B)(2), S.Ct.Prac.R. III. 3 Ill. BLUE CHIP'S RESPONSE TO APPELLANTS' PROPOSITIONS OF LAW A. Response to Proposition of Law No. I Appellants' first proposition of law argues that the First District rendered its decision via unpublished judgment entry in order to "hide" the fact that they "disregarded and misconstrued Ohio's Civil Rules of Procedure."3 Appellants' brazen accusation has no basis in law or fact and thus warrants rio discussion. To the extent that this argurnent is "incorporated in all propositions of law in this matter," Blue Chip submits that it is equally outrageous and unfounded in each specific instance that it is asserted or incorporated. B. Response to Propositions of Law Nos. 2 and 3 In their second and third propositions of law, Appellants take issue with the trial court's denying their motion for default judgment against 101.1 WIZF and Radio One, Inc. and granting 101.1 WIZF's motion for leave to file an answer out of time. Specifically, in their third proposition of law, Appellants claim that the trial court erred when it held that 101.1 WIZF had shown excusable neglect, pursuant to Civ. R. 6(6), when denying the motion for default judgment. Because these issues are intertwined, Blue Chip will address both propositions of law in this section. The trial court correctly denied Appellants' motion for default judgment against Radio One, Inc. and 101.1 WIZF. Default judgments are generally disfavored in Ohio.4 "T'he granting of a default judgment, analogous to the granting of a dismissal, is a harsh rernedy that should be imposed only when 'the actions of the defaulting party create a 3 Appellant's Memorandum in Support of Jurisdiction at p 6. ' See e.c., Suki v. Blume (1983), 9 Ohio App.3d 289. 4 presuniption of willfulness or bad faith.`5 Instead, cases should be decided on their merits whenever possible.6 To that end, Civ. R. 6(B) permits a trial court to grant a moving party additional time to file a pleading or response. Specifically, Civ. R. 6(B)(2) provides that "[w]hen by these rules `*' an act is required or allowed to be done at or within a specified time, the court for cause shown rriay at any time in its discretion '"* upon motion rriade after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." Whether a properly supported Civ. R. 6(B) motion should be granted is left to the sound discretion of the trial court, and the trial court's decision will not be disturbed upon appeal "absent a showing of an abuse of discretion."7 In determining whether neglect was excusable or inexcusable, courts must take into consideration all the surrounding facts and circumstances.8 In this case, Blue Chip timely answered the complaint on behalf of two of three radio stations and Radio One, which was incorrectly identified in the Complaint as Radio One, Inc.
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