IN TIIE SUPREME COURT OF OHIO

KEVIN H. LONGINO, et al. CASE NO.: Plaintiff - Appellant ON APPEAL FROM THE V. HAMILTON COUNTY COURT OF APPEALS RADIO ONE, INC., et al. FIRST APPELLATE DISTRICT

Defendant - Appellee CASE NO.: 040905

MEMORANDUM IN SUPPOR'T OF JURISDICTION OF APPELLANT KEVIN H. LONGINO, INDIVIDUALLY AND AS NEXT FRIEND OF MINOR CHILDREN JOHN DOE, JR, AND JANE DOE, JR.

Shondra C. Longino (00081874) 1414 S. Green Rd., Ste. 105 S. Euclid, Ohio 44118 (216) 932-4444 (216) 932-4432 (Fax)

Attorney for the Plaintiff's

Nathaniel Lampley Vorys, Satei-, Seymour and Pease LLP 221 East Fourth St., Suite 2000, Atriuni Two P.O. Box 0236 Cinncinnati, Ohio 45201-0236

Maria P. Vitullo Taft, Stettinius & Hollister, LLP 425 Walnut Street, Suite 1800 Cincinnati, OI-I 45202-3957

Attorney.s for the Defendants TABLE OF CONTENTS

EXPLANA'CION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION ...... 1

STA`I'EMENT OF THE CASE AND FACTS ...... 3

PROPOSITIONS OF LAWS

Proposition of Law No.1: Public policy necessitates that well-established precedent and the Rules of Civil Procedure cannot be ignored because a decision is not published and cannot be cited to ...... 6

Proposition of Law No. 2: The granting of a default judgment is not based on the merits of the case rather default judginents are, pursuant to Civ.R. 55, granted when a defendant did not appeared or otherwise defended the lawsuit ...... 7

Proposition of Law No. 3: An oversight by a defendant when not answering a Complaint is not excusable neglect as defined in Ohio's case law ...... 9

Proposition of Law No. 4: Where summons is served on a pai-ty and the party served determines it is not the real party in interest it must still answer, and if it fails to respond by appropriate plea, a judgment may be rendered against it ....11

Proposition of Law No. 5: Where a party is properly served notice to attend a deposition, or a non-party has been served by subpoena to attend a deposition, that party has an absolute duty to respond and non-compliance requires, pursuant to civil rules, sanctions to be imposed on the non-responding party as well as the attorney ...... 11

CONCLUSION ...... 12

CERTIFICATE OF SERVICE ...... 13

APPENDIX EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

The Court of Appeals manipulated the Civil Rules to affirm the trial court's rulings. In the opinion handed down in a Judgment Entry, the Court of Appeals for the First Appellate

District of Ohio detennined in this matter, inter alia, that a default judgment per Civ.R. 55 is based on the merits of the case not as a result of a non-contesting party, that a party named to a lawsuit need not respond if a separate aud distinct entity states that the party sued was not the proper party, that an "oversight" is excusable neglect under Civ.R. 6(b)(2), and that a subpoena to a non-party is not proper service pursuant to Civ.R. 45(A). Here, both Courts disposed of the case by disregarding and purposely misconstruing the civil rules and the Appeals Court handed down this new interpretation of the Rules in a`Judgment Entry" so the decision could not later be cited to.

Accordingly, this case is of public or great concern. This Court understood the gravity of

such actions and the miscarriage of justice resulting from the misuse of Ohio's Rules as it has

correctly stated that "[h]owever hurried a court may be in its efPorts to reach the merits of a

controversy, the integrity of procedural rules is dependent upon consistent enforcenlent because

the only fair and reasonable alternative thereto is complete abandonment.111illei• v. Lint, 62 Ohio

St.2d 209, 404 N.E.2d 752 (Ohio, 1980). The Civil Rules

Further, this case involves a substantial constitutional question. The actions of the

Appeals Court in this matter questions the constitutionality of any Court of Appeals' ability to

change the rules of civil procedure. The Ohio Constitution, provides, in part, that "[tJhe

Supreme Court shall prescribe rules governing practice and procedure, in all courts of the Statc,

which rules shall not abridge, enlarge, or modify any substantive right." See Ohio Constitution

Article TV, Section 5(13). Here, however, the Appeals Court has changed the Rules.

3 As a result, the Civil Rules have been made of no effect for the defendant or any other litigant that appeals to the Appeal's Court. The Court, in its discretion can manipulate and completely ignore the rules as long as it does not publish its decision. Litigants in Ohio must know that the Ohio Rules of Civil Procedure applies to all equally. Even if the appellants in this matter failed on the merits and summary judgment was proper, which the appellants contest, they followed the Rules in requesting a default judginent, and sanctions,

Regardless as to whether a Court of Appeals decision is published it cannot be contrary to existing law and civil rules. Decisions handed down by any appeals court in Ohio must comport with well-established precedent and unequivocally with the Civil Rules promulgated by the

Supreme Court of Ohio. Finally, a court of appeals in the State of Ohio has no authority to rewrite Ohio's Rules of Civil Procedure.

4 STATEMENT OF THE CASE AND FACTS

WDBZ 1230AM, aka the BUZZ, is a Cincitmati-based radio station owned by Radio

One, Inc. See Radio One, Inc., available at www.radio-one.com, last visited 11/27/2008; see also Brown v. Lawson, (lg` Dist, Hamilton County, 2006), 169 Ohio App. 3d 430, 863 N.E.2d

215 (noting in dicta that "WDBZ is owned by Radio One"). It has, for the past several years, hosted an annual black book fair. (Tolliver Depo., p. 8). Kevin Longino and his children attended one such Buzz Black Book Fair sometime before 2006. Id. While attending the event, and tiuiknown to the Mr. Longino, he and two of the children were photographed. (Longino Aff.)

The photo takeii at the event was subsequently used as an advertisement for 4th Annual Buzz

Book Fair in February 2007. (See Exhibit A). 7'hat book fair was held at the National

Underground Railroad Freedom Center ("Freedom Center"). Various other sponsoi-s were listed

on the advertisement, inchiding two other radio stations owned by Radio One, Inc. ("Radio

One"). Plaintifl=appellant, Kevin H. Longino for liimself and as next friend to his two ahildren,

filed a complaint against Radio One, Inc., its Cincinnati-based radio stations, and others,

including the Underground Railroad Freedom Center in September of 2007 for appropriation.

A company called Blue Chip Broadcasting, Ltd. ("Blue Chip") answered the complaint

for two of the radio stations. The third radio station, WIZF failed to answer the piaintill's'

Cornplaint. Approximately seventy-seven (79) days after filing the Complaint, and forty-nine

(51) days aller an aiiswer was due, the plaintiffs filed a motion for default judgment against

WIZF. (See Docket 11/29/2007). The complaint against Radio One Inc. and UCFW went

unanswered.

Once a motion for default judgment was filed against it, Blue Chip responded with

numerous pleadings stating that it had failed to answer due to an oversight, that the plaintiffs had

5 misidentified it in the Conaplaint as Radio One, Inc. and claimed to be the proper party in the action even tliough through affidavit and pleadings it continually denied it was Radio One, Inc.

Blue Chip, at some point, offered a "proposed" answer for the defaulting radio station and asked for sanctions. Additionally, plaintiffs filed a motion for default judgment against Radio One,

Inc., and UCFW.

In order to determine the facts of the case as well as to determine the coirect party in interest, the plaintiff conducted discovery. During that time it was detennined that Radio One,

Ine. was indeed the owner of all of the radio stations. It asked the trial to take judicial notice of the ownership information, but that motion was denied. Further, a deponent requested by notice and subpoena, failed to show. The plaintiffs filed a motion for sanctions.

The trial court was slow in responding to the plethora of motions filed. Flowever, the trial couart finally scheduled a hearing for the first tiine on all motions in August of 2008, nearly a year after the case was filed, where it promptly denied all motions of the plaintiffs-appellants.

No decision was written.

ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No.1: Public policy necessitates that well-established preeedent and the Rules of Civil Procedure cannot be ignored because a decision is not published and cannot be cited.

Througltout this matter both courts disregarded and misconstiued Ohio's Civil Rules of

Proeedure. And to hide this disregard, the appeals court's decision was submitted in an

unpublished entry. It is of great concern that the rule of law is being inisused by the courts and

then concealed by the nonpublishing of the decision. Such action is characteristic of every

proposition of law so stated herein. Thus, Proposition of Law No. I is incorporated in all

propositions of law in this niatter.

6 Proposition of Law No. 2: The granting of a default judgment is not based on the merit of the case rather default judgments are, pursuant to Civ.R. 55, granted when a defendant did not appeared or otherwise defended the lawsuit.

Both the trial court and the court of appeals abused its discretion when it denied and affirmed, respectively, the denial of a motion Yor default judgment where defendants failed to answer or answer within the time allowed by the Rules. See Civ.R. 55; Civ.R. 6(B)(2); Hasffer v.

Cicero (1995), 107 Ohio App. 3d 65, 74, 667 N.E.2d 1031 (allowing a trial court to enter a default judgment against a party who lras failed to comply witli the Ohio Civil Rules of

Procedure).

Civil Rrile 55 governs default judgments, and provides, in relevant part, "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend .

.. the party entitled to a judgment by defailt shall apply in writing or orally to the court ......

Essentially, a default judgment obviates a plaintiffs burden of proof of the elements. See Civ.R.

55, see also Reese v. Proppe, (8d' Dist. 1081) 3 Ohio App.3d 103, 443 N.E.2d 992.

Pre-Civil Rule decisions established the default judgment as a j udgment entered against a

defendant who has failed to timely plead in response to the plaintiffs complaint. McCabe v. Tom

(1929), 35 Ohio App. 73, 171 N.E. 868. Consequently, even before the civil rules were

promulgated a defendant was in default only when the defendant has failed to contest the

allegations raised in the complauit. Id. The current rule for defaul.tjudgment incoiporated this

long-standing concept, providing that a default judgment is proper when, and otily when, a

defendant has not contested the plaintifl"s allegations by pleading or "othertivise defend[ingj."

Id.; see also Civ.R. 55.

The trial court and the appeals coui-t in this case have completely disregarded this rule.

Two of the defendants in this matter did not even make an appearance in the case. No answer,

7 no appearance. Yet, the First District Court of Appeals affirmed the denial of the plaintiff's niotion for default judgment against one of the defendants finding that "[t]he trial court also properly denied the Longinos' default-judgnnent motion against the UCFW, as it is apparent from the reinainder of the record that it did not participate in creating the flyer, and thus the Longinos could not show clamages." (See Appeal Court Judgment Entry) (emphasis added). In otlier words, the appeals court determined that the trial court properly denied the motion for default judgment because the appellants could not substantiate their claim. The denial of a default judgment was, as interpreted by the appeals court, based on the nierits of the case, and therefore was appropriate. Certainly, this is not oniy suspicious but erroneous interpretation of Civ.R. 55.

Further, such interpretations hinder the affect of other rules of civil procedure.

For example, it is proper to render a default judgment against the defendant when he fails to answer as liability has been admitted or "confessed" by the omission of statements refuting the plaintiffs claims. See e.g., Civ. R. 8(D) (providing that avennents in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleading). Per the appeals court, now admission mrder Civ.R. 8(D) could later essentially be withdrawn if a trial judge determined, even without the defendant defending the matter, that there was no merit to the claim against it.

Another example of how such a rationalization would affect other rules is the requirement in the rules that expressly provides that "the defendant shall serve his answer within twenty-eiglit days after service of the summons and complaint upon him. See Civ.R. 12(A)(1);

see also llliller v. Lint, 62 Ohio St. 2d 209, 214, 404 N.E.2d 752. The decision that a default

judgment is appropriate when there is no merit to the case as was deteiniined in this matter

would defeat the twenty-eight day nile and make it of no effect. It would be appropriate, per the

8 Appeals Court, for the defendant not to answer within the twenty-eight days if at sonie point it was determined that the plaintiff could not prove its claims. Such reasoning is nonsensical. A default judgment may be awarded when a defendant fails to make an appearance by tiling an answer or otherwise defending an action. Period. It has nothilig to do with whether the plaintiff can prove datnages, his claims, or if the case has merit. Here, the appeals court ei-red in aClirmin ghte denial of a default judgrnent against WIZF, Radio One, Inc. and UCFW.

Proposition of Law No. 3: An oversight by a defendant when not aiiswering a Complaint is not excusable neglect as defined in Ohio's case law.

As discussed supra, the rules provide that a defendant must answer a complaint within twenty-eigllt days of being served. See Civ.R. 12(A)(1). The rules do allow, however, for an extension of time to file a pleading after the twenty-eight days, which is in the court's discretion

"upon motion made after the expiration of the specified period ...[and] where the failure to act was the result of excusable neglect. See Civ.R. 6(B)(2).

Excusable neglect has been described as conduct that falls substantially below what is reasonable under the circumstances. Davis v. Immediate Medical Services, Ino, (1997), 80 Ohio

St. 3d 10, 684 N.E.2d 292; State ex rel. Weiss v. Indass_ Comm. (1992), 65 Ohio St.3d 470, 473,

605 N.E.2d 37, 39, (citing GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio

St.2d 146, 152, 351 N.E.2d 113, 117). And "some showing of excusable neglect ...[is]

necessary prelude to the filing of the answer." Miller v, Lint (1980), 62 Ohio St. 2d 209, 404

N.E.2d 752. Moreover, the Suprenie Court of Ohio has held that it is an abuse of discretion for

the Court to allow a party to file a late answer to a complaint uiiless there has been excusable

neglect. Id.; Davis v. Immediate Medical Services, Inc, (1997), 80 Ohio St. 3d 10, 684 N.E.2d

292 (detcrmining that the trial court should not liave allowed counsel to file a late pleading).

9 Here, both com'ts granted the defendant an extension of time to tile an answer based on an "oversight" being excusable neglect.' The Appeals court wrote that "WIZF's answer was untimely filed due to a clerical et-ror of WIZF in failing to transmit the summons to Bh.ie Chip."

And then went on to hold that since the motion to respond out of time was filed "prior to the initial-case management conference" the trial court "did not err in granting Blue Chip's motion to file out of tinie." Here again, the appeals court has determined that the twenty-eight day rule does not apply if a "case managenient conference" is yet to be held. There is no provision in

Ohio's civil rules for the filing of a motion for a leave to plead based on a case management conference. Well, except for in this case. As a result of the ruling, the Court of Appeals for the

First District has added a new rule to Ohio's Rules of Civil Procedure. Notwitlistanding the

ruling in the appeals court, this Court has determined that an oversight is more an excuse for

neglect rather thaar excusable neglect and compliance with the Civil Rules carmot be disregarded.

Inexcusable neglect under Civ.R. 6(B)(2) has also been described as "conduct that falls

substantially below what is reasonable under the circumstances." Slate ex rel. YVeiss v. Indus.

Comm. (1992), 65 Ohio St.3d 470, 473. Additionally, courts have held that while "unusual or

special circumstances can justify neglect, if a party could have controlled or guarded against the

happening or event he later seeks to excuse, the neglect is not excusable." See e.g., Vanest v,

Pillsbury Co. (1997), 124 Ohio App.3d 525. In this ease, the Complaint with all three radio

stations and the owner of the radio stations named as defendants was delivered to the attprneys

by two of the radio stations. The attomey knew, by a simple review of the caption of the

Appellant's Coniplaint, that all three radio stations had been sued, yet it only answered for two.

A clerical error, probably not, and certainly it is conduct that falls substantially below what is

` Although an extension of time was granted in tlieory only, as all motions, including the one foi- summary judginent was granted on the same day. '1'he defendant never had to actually file an answer.

10 reasonable under the circumstances and an event that could have been adverted. Both courts abused their discretion by granting a leave to plead when there was no excusable neglect.

Proposition of Law No. 4: Where summons is duly served on a party and the party served determines it is not the real party in interest it must still answer, and if it fails to respond by appropriate plea, a judgment may be rendered against it.

The Court of Appeals found that shice the trial court designated Blue Chip as the "proper party for all the radio stations in this action ...[it] thus replaced WIZF and Radio One, Inc., as a named defendant" Mandatory case law, however, provides that "[w]here sununons is duly served on the real party in interest, who is the one actually intended to be sued, he must take timely advantage of the error by appropriate plea." See Maloney v. Callahan (1933), 127 Ohio

St. 387, 188 N.B. 656, paragraphs four and five of the syllabus; see also Civ.R. 9(A) (providing that the deficiency must be raised by "negative averment"). Further, "[flf the party served determines he is not the real party in interest and fails to respond by appropriate plea, he will be deenied to have waived the defect, and will be concluded by the judgment rendered against him."

Id.; see also Smith v. Brush-Moore Newspapers, Inc., (1971), 27 Oliio St. 2d 111, 271 N.E.2d

846.

Ilere, Radio One, Inc. is a separate and distinct entity from Blue Chip and contrary to the holding by the appeals court Blue Chip could not "replace" a properly named defendant. Again, the court lias misconstrued the civil rules and abused its discretion. See Civ.R. 9(A)

Proposition of Law No. 5: Where a party is properly served notice to attend a deposition, or a non-party has been served by subpoena to attend a deposition, that party has an absohite duty to respond and non-compliance requires, pursuant to civil rules, sanctions to be imposed on the non-responding party as well as the attorney.

The attendance of a party deponent may be compelled by the use of notice of deposition.

See Civ.R. 30(A). The attendance of a witness deponent may be compelled by the use of

subpoena as provided by Civ. R. 45. Id.

11 Civil rules governing depositions makes it explicit that a party properly served has an absolute duty to respond and that the court may impose sanctions for violations. See Civ.R.

37(D). Additionally, without adequate excuse to obey a subpoena, the court may deem that person in who fails to obey is in contempt of court. Civ.R. 45(E). However, a non-party who is subpoenaed to give testimony may avoid attending the deposition by filing a motion to quash the subpoena under Civ.R. 45(C). .See Ray v. .7acquemcrin, 2002-Ohio-3192.

In this matter a Notice of Deposition pursuant to Civ.R. 30 was served as well as a subpoena. Summons for deposition, either way, was proper. Accordingly, reasonable expenses and attorney's fees are required by statute to be paid when a party fails to attend a deposition.

See Civ.R.37 (providing that the court "shall" require the payment of expenses and fees).

Further, Civ.R. 45(E) authorizes the court to order the witness or his attorney if he frivolously resists discovery, to pay the deposing party's reasonable costs and attorney's fees iticurred. See also R.C. § 2317.21; State ex rel. Flunimel v. Sadler (2002) 96 Ohio St.3d 84.

CONCLUSION

No Court can change the Rules of Civil ProcedLixe, that is the purview of the Supreme

Court of Ohio. It is constitutionally granted and cannot be abridged or usurped. The Courts in

this matter have done just tlrat. This Court cannot ignore the flagrant disregard for the rules that

is evident in this matter. As such, jurisdiction in this matter should be granted.

Respectfully subinitted,

Shondra C. Longino, (Q^l 87 ) 1414 S. Green Rd., Ste."^105 S. Euclid, OF144118 (216) 932-4444 (216)932-4434(Fax)

12 CERTIFICATE OF SERVICE

The undersigned hereby certifies that a tr^e and exact copy of the foregoing Merit Brief to was sent via ordinary U.S. mail on this ^?lay of October 2009 to Nathaniel Lampley, Vorys, 221 East Fourth St., Suite 2000, Atriuni Two, P.O. Box 0236, Cincinnati, Ohio 45201- 0236, and Maria P. Vitullo, Taft, Stettinius & Hollister, LLP, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202-3957.

Shondra C. Longino (008

13 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

KEVIN H. LONGINO, Individually and : APPEAI. NO. C-o8o905 as Next Friend of Minor Children: TRIAL NO. A-o7o8090 JOHN DOE, JR., and JANE DOE, JR., . JUDGMENTENTRY. Plaintiffs-Appellants,

vs.

RADIO ONE, INC.,

THE BUZZ i23o AM WDBZ,

MOJO 100.3 FM, toi.i WIZF,

NATIONAL UNDERGROUND RAILROAD FREEDOM CENTER,

and

UFCW, Loca132D,l

Defendants-Appellants.

We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court.2

A photograph of plaintiffs-appellants, Kevin Longino and his two minor

children (collectively, "the Longinos"), was published in a flyer used to promote the

I The reeord does not indicate what the acronym UFCW represents. 2 See S.Ct.R.Rep.Op. 3(A), App.R. u.t(E), and Loc.R 12. OHIO FIRST DISTRICT COURT OF APPEAAi.S

fourth annual "Buzz Black Book Fair" of defendant-appellee 123o AM WDBZ, a radio station known as "The Buzz." The Longinos, upset that their permission was not obtained before their photograph was used, asserted claims for, inter alia, statutoiy

and common-law misappropriation against The Buzz and other organizations that had sponsored, hosted, or promoted the book fair. The organizations that had

promoted the book fair were defendants-appellees Radio One, Inc., and two radio

stations affiliated with The Buzz, MOJO 100.3 FM and io1.1. WIZF. Defendant-

appellee National Underground Railroad Freedom Center ("the Freedom Ceuter")

hosted the event at its facility, and defendant-appellee UFCW, Local 32D, was

alleged to have been one of the sponsors for the event.

In response to the lawsuit initiated by the Longinos, Blue Chip Broadcasting,

Ltd. d/b/a Radio One, ("Blue Chip") filed an answer on behalf of The Buzz and

MOJO 100.3 FM, indicating that Blue Chip owned and operated both of these radio

stations and that Blue Chip had been incorrectly identified in the complaint as Radio

One, Inc. Because 1oi.1 WIZF, Radio One, Inc., and UFCW failed to answer the

complaint in a timely manner, the Longinos filed motions for default .judgment

against those entities. The trial court denied these motions and allowed 7o1.1 WIZF

to file an answer out of time. The trial coui-t also granted Blue Chip's motion to

designate it as the proper party on behalf of the radio stations, as Blue Chip owned

and operated The Buzz, 1o1.1 WIZF and MOJO 100.3 FM and was "doing business

as" Radio One and not Radio One, Inc. Next, the trial court denied the Longinos'

motion for sanctions under Civ.R. ii and Civ.R. 45 against Blue Chip.

During discovery, several depositions were taken. Geri Tolliver, the

programming director f'or The Buzz who organized and planned the fourth annual

2 OHIO FIRST DISTRICI' COUR'I' OF t1PPEAI.,S

book fair, testified that the book fair was free for the public and was a"cultural event" to promote literacy. She testified that hosts for The Buzz, MOJO, and WIZF all promoted the event during broadcast hours. She stated that she had pulled several photographs from previous book fairs to use in. the flyer to promote the current book fair. She testified that the photograph of the Longinos used in the flyer was taken at a prior book fair and that she had made no more than ioo copies of the flyer to post around town. She planned to post the flyers at libraries. Finally,

Tolliver testified that she did not know Longino and his children when she approved their photograph for the flyer.

Annie Ruth Napier, a local artist who had volunteered at past book fairs, testified that she helped Tolliver create the flyer. She said that she chose the photograph of Longino and his children because it captured the spirit of the event, as the photograph showed "a program in [Longino's] hand, and the children and the face painting, and there were the books there." She testified that she did not know

Longino.

Joyce Ann Gibson, a volunteer at The Buzz, testified that she had offered to pass out roughly 200 fliers at a local basketball game. Because Longino used to be a customer at her salon, she recognized him in the flyer, but did not tell Tolliver or anyone else at The Buzz.

James K. Anderson, a weeldy talk-show host at The Buzz, testifled that he and

Longino were friends, but that he did not see a copy of the flyer with Longinos' photograph in it until June 2007, four months after the book fair.

3 OHIO FIRST DISTRICT COURT OF APPEALS

Blue Chip and the Freedom Center both moved for summary judgment, which the trial court granted. The court denied the Longinos' motion for summary judgment.

The Longinos now appeal, bringing forth five assignments of error.

In their first assignment of error, the Longinos contend that the trial court

erred by denying their motions for default judgment and by granting WIZF's motion

for leave to file an answer out of time.

Under Civ.R. 6(B)(2), a trial court has the discretion to grant a niotion for

leave to file a pleading out of tirne if the court determines that the reason for the

request to file out of time is due to "excusable neglect."3 The determination of

wheCher neglect is excusable must take into consideration all the surrounding facts

and circumstances, and courts must be mindful that cases should be decided on their

merits, where possible, rather than on procedural grounds.4

After reviewing the record, we hold that the trial court did not abuse its

discretion in granting Blue Chip's motion to file an answer for WIZF out of time. In

its tnotion for leave to plead out of time, Blue Chip explained that WIZF's answer was

untimely filed due to a clerical error of WIZF in failing to transmit the summons to

Blue Chip. We note that Blue Chip filed its motion to respond out of time prior to the

initial-case management conference. Considering these circumstances, we hold that

the trial court did not err in granting Blue Chip's motion to file out of time.

We also hold that the trial court did not err in denying the Longinos' default-

judgment motion against WIZF an.d Radio One, Inc. Blue Chip was designated as the

proper party for all the radio stations in this action and thus replaced WIZF and

3 F.vans v. Chapman (1986), 28 Ohio St.3d 132, 502 N.E.2d 1012. 4 Griffey v. Rajan ( 1987), 33 Ohio St.3d 75, 79-81, 5i4 N.E.2d 1122.

4 OHIO FIRST DISTRICT COURT OF APPFALS

Radio One, Inc., as a named defendant. Given that Blue Chip was the proper party and had filed a timely answer, and being minclful that cases should be decided on their merits, we conclude that the default judgment motion was properly denied.

The trial court also properly denied the Longinos' default-judgment motion against the UCFW, as it is apparent fi•om the remainder of the record that it did not participate in creadng the flyer, and thus the Longinos could not show damages.

Therefore, the first assignment of error is overruled.

In their second assignment of error, the Longinos maintain that the trial court abused its discretion by granting Blue Chip's motion to designate it as the proper party. We disagree. Attached to Blue Chip's motion was the affidavit of Linda

Vilardo, the Vice President and Assistant Secretaiy of Blue Chip Broadcasting, Ltd., who stated that Blue Chip did business in Ohio as "Radio One" and not "Radio One,

Inc." She further stated that Blue Chip owned the radio stations "123o AM WDBZ,

7.00.3 FM WMOJ, and ioi.FM WIZF." Given that this affidavit was not properly

disputed, we hold that the trial court did not abuse its discretion in designating Blue

Chip as the proper party for the radio-station defendants. The second assignment of

error is overruled.

In their third assignment of error, the Longinos assert that the trial coui-t

erred by granting summaiy judgment in favor of Blue Chip and the Freedom Center

on the Longinos' claims for common-law and statutory misappropriation, as well as

their claims for negligence, freedoni of expressive association, child exploitation,

unjust enrichment, and intentional infliction of emotional distress. All of these

remaining claims were based on the allegation that Blue Chip and the Frecdom

Center had misappropriated the Longinos' images.

5 OHIO FIRST DISTRICT COURT OF APPTALS

Ohio has adopted the tort of misappropriation of the name or likeness of another as propounded by the Restatement of the Law 2d, Torts (1966) The

Restatement provides, "The value of the plaintiffs name is not appropriated by the mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity. No one has the right to object merely because his name or his appearance is brought before the public, since neither is in

any way a private matter and both are open to public observation."6

Ilere, the undisputed evidence demonstrated that the Longinos were depicted

in the flyer at issue as members of the public who had previously attended a public

book fair. Their names were not used in the flyer, and there was no evidence

presented that the Longinos had a noteworthy reputation that wotdd have benefited

The Buzz, the organizer of the book fair. In fact, Napier, who chose ihe photograpli

to use in the flyer, testified that she did not know who the Longinos were and that

their photograph had only been chosen because it best represented the spirit of the

event. Because there was no evidence presented that Blue Chip and the Freedom

Center gained any commercial benefit by using the Longinos' photograph, we cannot

say that the trial court erred by granting summaiy judgment to them on the

cornmon-law misappropriation claim.

With respect to the statutory misappropriation claim, we hold that the trial

court also properly entered suminary judgment in favor of Blue Cbip and the

Freedom Center. R.C. 2741.02 prohibits the use of "any aspect of an individual's

a'Lacchini v, Scripps-Homard Broadcasri ig Co. (iq76), 47 Ohio St.2d 224,351 N.E.2d 424• e Id., citing Restatement of the Law 2d, Torts (1965), Section 652(C).

6 OHIO FIRST DISTRICT COURT OF APPEALS

persona for a commercial purpose." Even if we were to assume that the use of the

Longinos' photograph in the flyer proinoting the book fair was for a commercial purpose, the flyer fell within an exemption to statutory liability because the

Longinos' image was used to report an event of general or pnblic interest-the free, public book fair-and the photograph of the Longinos was used to show unnamed members of the public who had attended previous book fairs.7

Additionally, we note, with respect to the Freedom Center, that summary judgment was also entered in its favor because it was undisputed that it did not sponsor the book fair, but merely hosted it at its facility, and had not participated in creating or distributing the flyer at issue.

Finally, summary judgment was properly entered on behalf of Blue Chip and the Freedom Center on the Longinos' remaining claims, as each of'those Claims was based on the assertion that Blue Chip and the Freedom Center had improperly used the Longinos' likenesses in the flyer to promote the book fair.

The third assignment of error is overruled.

In their fourth assignment of error, the Longinos argue that the trial c.ourt erred by denying their motion for attorneys fees and sanctions against Blue Chip under Civ.R. 37 and Civ.R. 45.

The Longinos argue that Blue Chip kept them from deposing a person named

Cheiyl Love, a former owner of Blue Chip and/or the radio stations that Blue Chip

operated. The record demonstrates that the Longinos seived Blue Chip with a notice

to depose Love. But Blue Chip, by its vice-president's affidavit, demonstrated that

Cheryl Love was no longer an owner of Blue Chip and, therefore, was not an officer of

7 See R.C. 2741.09(A)(3).

7 OHIO FIRST DISTRICT COURT OF APPF.AI.S

Blue Chip or any of the radio stations that was a paI-ty to this action. Therefore, Blue

Chip had no obligation to secure Love's presence at the deposition.

Because the record demonstrates that Love was not properly served with a subpoena, we cannot say that the trial court abused its discretion in denying the

Longinos' motion for sanctions against Blue Chip. The fotuth assignment of crror is overruled.

In the fifth assignment of error, the Longinos argue that the trial court abused its discretion by denying their motions for sanctions under Civ.R. ii and R.C. 2323•51 against Blue Chip and its attorney. We disagree.

The Longinos claim that Blue Chip filed and signed pleadings that it knew were untruthful. Though the Longinos do not specify what pleadings were untruthful, they infer that it was any pleading that stated that Blue Chip, not Radio

One, Inc., was the proper party in this case.

We have reviewed the record and. cannot say that Blue Chip acted in bad faith or frivolously by any filings that it made in this case, particularly in light of our holding that the trial court properly determined that Blue Chip was the proper party to defend this action. Aecordingly, we overrule the Longinos' fifth assignment of error.

The judgment of the trial court is affirmed.

Further, a certified copy of this Judgment Entry shall be sent to fhe trial court under App.R. 27. Costs shall be taxed under App.R. 24.

I'IP.NDON, P.J., HILDEBRANDT and CIINNINGIIAM, JJ.

To the Cleric: Enter upon the Journal of the Court on September 16, 2009 per order of the Court Presiding Judge

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