"An application for reconsideration is not designed for use in instances where a party simply disagrees with the conclusions reached and the logic used by an appellate court. App.R. 26 provides a mechanism by which a party may prevent miscarriages of justice that could arise when an appellate court makes an obvious error or renders an unsupportable decision under the law." State v. Owens (1996),

"It is well-settled that this court will not consider arguments raised for the first time on appeal unless our failure to consider the issue will result in a plain miscarriage of justice." Overstreet v. Lexington-Fayette Urban County Gov't, 305 F.3d 566, 578 (6th Cir. 2002) (quoting Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 143 (6th Cir. 1997)).

When alleging a claim for libel, Ohio courts have repeatedly held that a plaintiff must demonstrate the following essential elements: (1) a false statement of fact was made concerning the plaintiff; (2) the statement was defamatory towards the plaintiff; (3) the statement was written; (4) the statement was published; and (5) in publishing the statement, the defendant acted with the necessary degree of fault. Gupta v. The Lima News (2000), 139 Ohio App.3d 538, 544.

A claim for defamation must fail "if it may be established that the published statement was truthful." Gupta v. The Lima News (2000), 139 Ohio App. 3d 538, 544. A defendant need not show that every aspect of the statement is true. A demonstration that the imputation is substantially true is sufficient to overcome a claim for libel or slander. Bruss v. Vendicator Publishing Company (1996), 109 Ohio App. 3d 396, 400, citing Natl. Medic Serv. Corp. v. E.W. Scripps Co. (1989) 61 Ohio App. 3d 752, 755.

The determination of whether a speech is a statement of opinion or fact is to be made by the court. Wampler v. Higgins (2001), 93 Ohio St.3d 111, 126; Vail v. The Plain Dealer Publishing Co. (1995), 72 Ohio St.3d 279, 280.

The Supreme Court of Ohio adopted a "totality of the circumstances" test to be used when determining whether a statement is fact or opinion. Specifically, the court should consider the following four factors: (1) the specific language used, (2) whether the statement is verifiable, (3) the general context of the statement, and, finally, (4) the broader context in which the statement appeared. Scott v. News-Herald (1986), 25 Ohio St.3d 243, 250, These four factors are guidelines only and are not intended to be rigidly applied. Vail, 72 Ohio St.3d at 282.

Actual Malice

In New York Times Co. v. Sullivan (1964), 376 U.S. 254, 284-86, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686, 708-710, the United States Supreme Court held that a person who is a public figure cannot recover damages for a defamatory falsehood unless he proves by clear and convincing evidence that the false statement was made with "actual malice" -  with knowledge that it was false or with reckless disregard of its truth or falsity. Id. at 279-280; Dale v. Ohio Civ. Serv. Emp. Assn. (1991), 57 Ohio St.3d 112, 114, 567 N.E.2d 253, 255-56.

[A] public-figure plaintiff must show 'actual malice' on the part of a defendant in publishing the false statement. 'Actual malice' is demonstrated by evidence that shows that the defendant published the statement with knowledge that it was false or that the defendant published the statement with reckless disregard as to whether it was false or not. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. A plaintiff bears the burden of producing clear and convincing evidence of actual malice. [Citations omitted.]

Kassouf v. Cleveland Magazine City Magazines (2001), 142 Ohio App.3d 413, 421-422.

"Actual malice" is demonstrated by evidence that shows that Defendant published the statements with (1) knowledge that the statements were false or (2) reckless disregard as to whether the allegedly defamatory statements were false or not. Dale, supra, 57 Ohio St.3d at 114, 567 N.E.2d at 255-56.

Since reckless disregard is not measured by lack of reasonable belief or of ordinary care, even evidence of negligence in failing to investigate the facts is insufficient to establish actual malice. Rather, since 'erroneous statements is inevitable in free debate, and * * * must be protected if the freedoms of expression are to have the 'breathing space' that they 'need * * * to survive," * * *', '[t]here must be sufficient evidence to permit the conclusion that defendant in fact entertained serious doubts as to the truth of his publication.'

New York Times, supra, 376 U.S. at 271-72; Dupler, supra, 64 Ohio St.2d at 119. Even "[e]vidence of hatred, spite, vengefulness, or deliberate intention to harm can never, standing alone, warrant a verdict for the plaintiff in such cases * * *." Varanese v. Gall 1988), 35 Ohio St.3d 78, 79-80, 518 N.E.2d 1177, 1180; Kassouf, supra, 142 Ohio App.3d at 423.

There are only two reasons for dismissing a complaint for declaratory judgment pursuant to Civ. R. 12(B)(6): (1) where there is no real controversy or justiciable issue between the parties, or (2) where the declaratory judgment will not terminate the uncertainty or controversy, under R.C. 2721.07.Otherwise, the court is required to issue a judgment declaring the rights or legal relations, or both, of the parties, and the court errs when it dismisses the complaint for failure to state a claim under Civ. R. 12(B)(6).

In order to survive a Fed.R.Civ.P 12 (b)(6) motion, the plaintiff's Complaint must allege facts, which if proved, would entitle the plaintiff to relief. Conley v. Gibson (1957), 355 U.S. 41, 45-46. (Additional citations omitted.) Although the Court must liberally construe the Complaint in favor of Plaintiffs, it is not required to accept conclusions of law or make unwarranted inferences from the allegations. Buckles v. Columbus Municipal Airport Authority, et al., 2002 WL 193853 (S.D. Ohio). (Additional citations omitted.)

(a) a representation or, where there is a duty to disclose, concealment of a fact,

(b) which is material to the transaction at hand,

(c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred,

(d) with the intent of misleading another into relying upon it,

(e) justifiable reliance upon the representation or concealment, and

(f) a resulting injury proximately caused by the reliance.

Burr v. Stark Cty. Bd. of Commrs., 23 Ohio St.3d 69 (1986).

"A promisor may be freed from his obligation, [], when a supervening event, the non-occurrence of which was a basic assumption on which the contract was made, renders performance impossible or impracticable." Moore v. Nichol, D.D.S. 1991 Ohio App. LEXIS 5219, *7 (Ohio Ct. App. 9th 1991) citing Restatement of the Law 2d, Contracts (1981) 313, Section 261.

Impossibility of performance occurs where, after the contract is entered into, an unforeseen event arises rendering impossible the performance of one of the contracting parties. Truetried Serv. Co. v. Hager, 691 N.E. 2d 1112, 1118 (Ohio Ct. App. 8th 1997).

Two elements are required for the supervening event: lack of foreseeability and absence of promisor fault. The performance must be rendered impossible without fault of the party asserting the defense and where the difficulties could not have been reasonably foreseen. Skilton v. Perry Local School District, 2002 Ohio 6702, P26 (Ohio Ct. App. 11th 2002). If the supervening event that renders performance impracticable or impossible is not reasonably foreseeable and, thus, not reasonably within the contemplation of the parties at the time of contracting, "the risk should not fairly be thrown upon the promisor." Paul v. First National Bank, 369 N.E. 2d 488, 496 (Hamilton County 1976).

The doctrine of impossibility of performance is closely related to that of commercial impracticability in that both doctrines excuse performance due to circumstances beyond a party's control. Thus, to assert either defense, the party must show "that an unforeseeable event occurred, that the non-occurrence of the event was a basic assumption underlying the agreement, and that the event rendered performance impracticable." Roth Steel Products v. Sharon Steel Corp. (C.A.6, 1983), 705 F. 2d 134, 149. cited in Settles v. Invesco Real Estate Partnership, 1989 Ohio App. LEXIS 4471 (Ohio Ct. App. 12th 1989).

 “An intentional tort is an act committed with the intent to injure another, or committed with the belief that such injury is substantially certain to occur.”  Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, Syllabus.

(1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff,

(2) that the actor's conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community,

(3) that the actor's actions were the proximate cause of the plaintiff's psychic injury, and

(4) that the mental anguish suffered by the plaintiff is serious and of a nature that no reasonable man could be expected to endure it.

Burkes v. Stidham (1995), 107 Ohio App.3d 363, 375.

Serious emotional distress requires an emotional injury that is both severe and debilitating. Id.

Significantly, the defendant's conduct must be:

"so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" ***  In Irvine v. Akron Beacon Journal (2002), Summit App. No. 20804, 2002-Ohio-3191, at ¶48-51

To recover for intentional infliction of emotional distress in Ohio, it is not enough that the defendant has acted with an intent that is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Liability is found only where the conduct is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Yeager v. Loc. Union 20 (1983), 6 Ohio St.3d 369, 374-375.

2. In order to recover for a claim of intentional interference with a contract, one must prove (1) the existence of a contract, (2) the wrongdoer's knowledge of the contract, (3) the wrongdoer's intentional procurement of the contract's breach, (4) the lack of justification, and (5) resulting damages.

Kenty v. Transamerica Premium Ins. Co. (1995), 72 Ohio St.3d 415, Syllabus.

In determining whether an actor has acted improperly in intentionally interfering with a contract or prospective contract of another, consideration should be given to the following factors: (a) the nature of the actor's conduct, (b) the actor's motive, (c) the interests of the other with which the actor's conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor's conduct to the interference, and (g) the relations between the parties. (Restatement of the Law 2d, Torts [1979], Section 767, adopted.) Fred Siegel Co., L.P.A. v. Arter & Hadden (1999), 85 Ohio St.3d 171, 178-179.

The Ohio Supreme Court has declined to recognize a cause of action for false light invasion of privacy. M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St.3d 497, 507 (1994).

In Sustin v. Fee, 69 Ohio St. 2d 143, 145 (1982), the Supreme Court refined its definition of the intrusion branch of the tort. "The scope of a person's liability for intrusion into another's seclusion is stated in Section 652B of the Restatement of Torts 2d, as follows: 'One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.'"

In Amadio v. Skovira, 191 F.Supp. 2d 898, 902 (N.D. Ohio 2002), the court held that in order to sustain an invasion of privacy claim, Plaintiff must establish that Defendant intrude into his private affairs and that such an intrusion would "shock the ordinary person to the point of emotional distress." (quoting Haller v. Phillips, 69 Ohio App. 3d 574, 577 (1990).

Dismissal of the action is appropriate where the Court construes material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the non-moving party as true, and finds beyond doubt, that the plaintiffs could prove no set of facts in support of their claim that would entitle them to relief against the Defendants in question. Id. Unsupported allegations and broad and vague legal conclusions are not sufficient to withstand a motion to dismiss. Nor do Courts go so far as to "indulge in conjecture concerning facts that are not pleaded, argued or suggested by the nonmoving party." York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 147-148.

"Rule 8 of the Ohio Rules of Civil Procedure require[s] that sufficient operative facts be concisely set forth in a claim so as to give fair notice of the nature of the action[.]" DeVore v. Mut. of Omaha (1972), 32 Ohio App.2d 36, 38.

In Driskill v. Cincinnati (1940), 66 Ohio App. 372, 20 O.O. 245, 34 N.E.2d 241, the court set forth two criteria which must be present in order for a justiciable issue to exist: (1) the plaintiff must have a right or a duty owing by the defendant; and (2) the denial of the plaintiffs right or duty by the defendant must be a present event rather than a hypothetical future event. See, also, Bilyeu v. Motorists Mut. Ins. Co. (1973), 36 Ohio St.2d 35, 37, 65 O.O.2d 179, 180, 303 N.E.2d 871, 873 (quoting Aetna Life Ins. Co. v. Haworth [1937], 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617).

As stated by the Supreme Court of Ohio in Zimmie v. Calfee, Halter & Griswold (1989), 43 Ohio St.3d 54:

"Under R.C. 2305.11(A), an action for legal malpractice accrues and the statute of limitations begins to run when there is a cognizable event whereby the client discovers or should have discovered that his injury was related to his attorney's act or non-act and the client is put on notice of a need to pursue his possible remedies against the attorney or when the attorney-client relationship for that particular transaction or undertaking terminates, whichever is later." Id., at syllabus (citation omitted).

In part, the existence of a duty depends on the foreseeability of the injury. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act. Id. However, foreseeability alone is insufficient to create liability. Simpson v. Big Bear Stores Co. (1995), 73 Ohio St.3d 130, 134. The mere fact that harm to another is a foreseeable consequence of one's failure to act does not, in and of itself, impose a duty to take such action. Slagle v. White Castle Systems, Inc. (1992), 79 Ohio App.3d 210, 216 citing 2 Restatement of the Law 2d, Torts (1965) 116, at Section 314 (adopted in Gelbman v. Second Natl. Bank of Warren (1984), 9 Ohio St.3d 77, 79).

There is no duty under Ohio law to control the conduct of another person so as to prevent him from causing physical harm to another unless a "special relation" exists between the actor and that person which imposes a duty upon the actor to control the person's conduct. Such a "special relation" exists when one takes charge of a person whom he knows or should know is likely to cause bodily harm to others if not controlled. Littleton v. Good Samaritan Hospital & Health Ctr. (1988), 39 Ohio St.3d 86, 92.

The Ohio Supreme Court has established that a complaint can be stated for the negligent infliction of emotional distress without a contemporaneous physical injury. Schultz v. Barberton Glass Co. (1983),

      "1. A cause of action may be stated for the negligent infliction of serious emotional distress. (Schultz v. Barberton Glass Co.,

      "2. A cause of action may be stated for the negligent infliction of serious emotional distress without the manifestation of a resulting physical injury. Proof of a resulting physical injury is admissible as evidence of the degree of emotional distress suffered.

      "3. Where a bystander to an accident states a cause of action for negligent infliction of serious emotional distress, the emotional injuries sustained must be found to be both serious and reasonably foreseeable, in order to allow a recovery.

      "3a. Serious emotional distress describes emotional injury which is both severe and debilitating. Thus, serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case.

      "3b. The factors to be considered in order to determine whether a negligently inflicted emotional injury was reasonably foreseeable include: (1) whether the plaintiff was located near the scene of the accident, as contrasted with one who was a distance away; (2) whether the shock resulted from a direct emotional impact upon the plaintiff from sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) whether the plaintiff and victim (if any) were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

      "4. A cause of action for the negligent infliction of serious emotional distress may be stated where the plaintiff-bystander reasonably appreciated the peril which took place, whether or not the victim suffered actual physical harm, and, that as a result of this cognizance or fear of peril, the plaintiff suffered serious emotional distress."

2. Notice of Filing Notice of Removal &endash; Filed in Common Pleas Court. Attached document: Notice of Removal, Consent to removal

3. Certificate of Filing - Filed in District Court. Attached document: Notice of Filing of Defendant's Notice of Removal

The standard of review in a summary judgment appeal is de novo. De novo review means that the Court of Appeals uses the same standard that the trial court should have used and that it "review the trial court's decision independently and without deference to it." Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 622 N.E.2d 1153 (1993) as cited in Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383 (1997).

Summary judgment is a procedural device designed to "terminate litigation and to avoid a formal trial where there is nothing to try." Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358, 604 N.E.2d 138; see also Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St. 2d 1, 433 N.E.2d 615. The standard for summary judgment is set forth in Ohio Civ. R. 56(C) which states in pertinent part:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, stipulations of fact, if any, filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

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A party moving for summary judgment bears the initial burden of demonstrating that there is no genuine issue as to any material fact on the essential elements of the non-moving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264. "To meet that burden, the moving party need not actually present evidence that no dispute remains, it must merely point out that no evidence has been produced to support the non-moving party's claim." Anderson v. St. Francis &endash; St. George Hosp. (1992), 83 Ohio App.3d 221, 224; 614 N.E.2d 841; see also Celotex v. Catrett (1986), 477 U.S. 318, 325, 106 S.Ct. 2548.

Summary judgment is appropriate when (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (1998). The "mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

The non-moving party has a reciprocal burden, outlined in Ohio Civil Rule 56(E) to set forth specific facts showing there is a genuine issue for trial. A plaintiff cannot be allowed to rely merely upon the pleadings or upon unsupported allegations. Civ. R. 56(E); Shaw v. J. Pollock & Co. (1992), 82 Ohio App.3d 656, 612 N.E.2d 1295. Therefore, in order to survive a motion for summary judgment, the non-moving party must provide affirmative evidence, beyond the pleading, of specific facts which show the existence of a genuine issue for trial. Anderson, supra, at 224-25; Dresher, supra, at 293.