|Citations to Cases and Statutes
Application for Reconsideration
Pursuant to App.R. 26(A), a party may file an
application for reconsideration of an appellate court decision. The standard
for reviewing such an application is whether the application "'calls to the
attention of the court an obvious error in its decision or raises an issue
for our consideration that was either not considered at all or was not fully
considered by us when it should have been.'" Juhasz v. Costanzo (Feb.
7, 2002), 7th Dist. No. 99-CA-294, quoting Columbus v. Hodge (1987),
37 Ohio App.3d 68,
523 N.E.2d 515, paragraph one of the syllabus.
"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),
112 Ohio App.3d 334,
336, 678 N.E.2d 956.
Argued First Time on Appeal
|White v. Anchor Motor Freight,
Inc., 899 F.2d 555, 559 (6th Cir. 1990) ("This court will not decide
issues or claims not litigated before the district court.").
"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)).
|In Ohio, to succeed on a claim of conversion, the
plaintiff must prove (1) plaintiff's ownership or right to possession of the
property at the time of conversion; (2) defendant's conversion by a wrongful
act or disposition of plaintiff's property rights; and (3) damages." Haul
Transport of Va., Inc. v. Morgan (June 2, 1995), 2nd Dist. App. No.
CA14859. Cited in Kimble Mixer Co. v. Hall, 2005-Ohio-794. The tort
of conversion requires dominion or control wrongfully asserted over personal
property. Kraft Constr. Co. v. Cuyahoga Cty. Bd. of Commrs. (1998),
128 Ohio App.3d 33, 42.
Defamation, Libel and Slander
|"In an action for a libel or a
slander, the defendant may allege and prove the truth of the matter charged
as defamatory. Proof of the truth thereof shall be a complete defense. In
all such actions any mitigating circumstances may be proved to reduce
damages." Ohio Rev. Code § 2739.02
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.
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.
Dismiss a Complaint
|Fioresi v. State Farm Mut. Auto. Ins. Co.
(1985), 26 Ohio App.3d 203.
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).
Dismiss a Complaint: Failure to State a Claim
|When ruling on a Civ.R. 12(B)(6) Motion to Dismiss
a Complaint for failure to state a claim upon which relief can be granted, a
trial court must presume the truth of all factual allegations in the
Complaint and must make all reasonable inferences in favor of the nonmoving
party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192.
Before a trial court can grant a Civ.R. 12(B)(6) motion, it must appear
beyond doubt from the Complaint that the Plaintiff cannot prove any set of
facts entitling him to recover. York v. Ohio State Highway Patrol
(1991), 60 Ohio St.3d 143, 144. The trial court, however, need not presume
the truth of conclusions that are not supported by factual allegations.
Mitchell, at 192.
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.)
|In Ohio, the elements of the common
law tort of fraud are:
(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).
Impossibility of Performance - Circumstances
|It is true that the
contractor is not excused from substantial performance of his contract
merely because performance may be difficult, dangerous or burdensome. Nor
does the mere impossibility of performance necessarily relieve the promisor
from the payment of damages for failure to perform, unless the contract
itself contains a provision, express or implied, releasing him from damages
in case the contract becomes impossible of performance. There is, however, a
conflict of authority upon this subject, but the great weight of authority
seems to support the rule stated in 3 Elliott on Contracts, Section 1891:
“Where no express or implied provision as to the event of impossibility can
be found in the terms or circumstances of the agreement, it is a general
rule of construction * * * that the promisor remains responsible for
damages, notwithstanding the supervening impossibility or hardship. It must
be borne in mind, however, that it is equally well settled that when
performance depends upon the existence of a given person, purpose or thing
and such existence or continued existence was the assumed basis of the
agreement, the death of the person or the destruction or non-existence of
the thing without fault puts an end to the obligation.”
The State, ex rel. Jewett, v. Sayre (1914), 91 Ohio St. 85, 95.
Impossibility of Performance -
|"It has long been held that
impossibility of performance renders a contract unenforceable." See
Cleveland Indus. Square, Inc. v. Cleveland (Mar. 9, 1995), Cuyahoga App.
No. 67068, unreported, 1995 WL 106149; Herman v. Natl. Hobby Co., Inc.
(Jan. 14, 1993), Cuyahoga App. No. 61586, unreported, 1993 WL 7938;
Anchor v. Jones (Apr. 22, 1992), Lorain App. No. 91CA5109, unreported,
1992 WL 82652." Doe v. Adkins (1996), 110 Ohio App.3d 427, 437.
"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
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
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.
Infliction of Emotional Distress
|A claim for intentional infliction of
emotional distress requires proof of the following elements:
(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
(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.
with a Contractual Relationship - Tort
|1. The tort of tortious interference
with a contractual relationship is recognized in Ohio.
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 , Section 767, adopted.) Fred Siegel Co., L.P.A. v.
Arter & Hadden (1999), 85 Ohio St.3d 171, 178-179.
Invasion of Privacy - Intrusion
|A claim for invasion of privacy may involve any
one of four distinct torts. Fisher v. Wellington Exempted Vill. Schs. Bd.
of Educ., 223 F. Supp. 2d 833 (N.D. Ohio, 2001). These include: (1) the
unwarranted appropriation or exploitation of one's personality, name or
likeness; (2) publicity that places one in a false public light; (3) "the
publicizing of one's private affairs with which the public has no legitimate
concern, or [(4)] the wrongful intrusion into one's private activities in a
manner as to outrage or cause mental suffering, shame or humiliation to a
person of ordinary sensibilities." Housh v. Peth, 165 Ohio St. 35
(1956), paragraph two of the syllabus.
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).
|Ohio Rule of Civil Procedure 12(C) provides,
"After the pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings." A Civ.R. 12(C)
motion for judgment on the pleadings may be employed by a defendant to
assert that the plaintiff has failed to state a claim upon which relief can
be granted. Gawloski v. Miller Brewing Co. (1994), 96 Ohio App.3d
160. A motion for judgment on the pleadings permits the Court to consider
the Complaint and Answer filed in the case. State, ex rel. Midwest Pride,
IV, Inc. v. Pontious (1996), 75 Ohio St. 3d 565.
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.
|Halley v. Ohio Co. (1995), 107 Ohio App.3d
518. Court of Appeals of Ohio, Eighth District, Cuyahoga County.
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 , 300 U.S.
227, 57 S.Ct. 461, 81 L.Ed. 617).
|To establish a cause of action for legal
malpractice based on negligent representation, a plaintiff must show (1)
that the attorney owed a duty or obligation to the plaintiff, (2) that there
was a breach of that duty or obligation and that the attorney failed to
conform to the standard required by law, and (3) that there is a causal
connection between the conduct complained of and the resulting damage or
loss. (Krahn v. Kinney , 43 Ohio St.3d 103, 538 N.E.2d 1058,
followed.) Vahila v. Hall (1997), 77 Ohio St.3d 421, 427
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).
|Consortium consists of society, services, sexual
relations and conjugal affection which includes companionship, comfort, love
and solace. Clouston v. Remlinger Oldsmobile Cadillac, Inc. 22 Ohio
St.2d 65 (1970). While the State of Ohio recognizes a loss of consortium
claim, such a claim is derivative of, and thus tied to the success of, the
underlying claim. Messmore v. Monarch Machine Tool Co., 11 Ohio App.
3d 67, Syllabus (Ohio Ct .App.9th 1983).
Negligence Duty - Foreseeability
|The existence of a duty in a negligence action is
a question of law for the court, and there is no express formula for
determining whether or not a duty exists. Mussivand v. David (1989),
45 Ohio St.3d 314.
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
Negligent Infliction of
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),
4 Ohio St.3d 131, 4
OBR 376, 447 N.E.2d 109. The court, in Paugh v. Hanks (1983),
6 Ohio St.3d 72, 6
OBR 114, 451 N.E.2d 759, at syllabus, outlined the grounds necessary to
establish a claim of negligent infliction of emotional distress:
"1. A cause of action may
be stated for the negligent infliction of serious emotional distress. (Schultz
v. Barberton Glass Co.,
4 Ohio St.3d 131 [4
OBR 376, 447 N.E.2d 109], followed.)
"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
"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
Quash a Subpoena - Criminal
|In In re Subpoena Duces Tecum Served Upon Atty.
Potts, the Supreme Court of Ohio adopted the four-step test announced in
United States v. Nixon (1974), 418 U.S. 683, 699-700 to determine
whether a subpoena duces tecum issued in accordance with Crim.R. 17(C)
should be suppressed. "[T]he proponent of the subpoena must demonstrate that
the subpoena is not unreasonable or oppressive by showing (1) that the
documents are evidentiary and relevant; (2) that they are not otherwise
procurable reasonably in advance of trial by exercise of due diligence; (3)
that the party cannot properly prepare for trial without such production and
inspection in advance of trial and that the failure to obtain such
inspection may tend unreasonably to delay the trial; and (4) that the
application is made in good faith and is not intended as a general 'fishing
expedition.'" Id. at 100.
Question of Fact - Credibility
|Inconsistencies by a party precludes Summary
Judgment because there exists a question of credibility. Turner v.
Turner, 67 Ohio St. 3d 337, 342, 343 (1993). However, Defendant's
inconsistencies do not affect Plaintiff's Motion. "In a number of cases,
appellate courts have found a non-moving party can not defeat a motion for
summary judgment by creating an issue of fact through a contradictory
affidavit." Zara v. Gabrail, 1998 Ohio App. LEXIS 6545, 5-7 (Ohio Ct.
App. 5th 1998). A contradictory affidavit of party witness should be
disregarded because it is being used as a self-serving device to avoid
damaging admissions. Clemmons v. Yaezell, 1988 Ohio App. LEXIS 5377,
14 (Ohio Ct. App. 2nd 1988).
Removal - Process and filings
|1. Notice of Removal - Filed in District Court.
Attached document: Consent to removal by co-defendant, all documents filed
in state court
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
Standard of Review - Summary
|The standard of review for summary
judgment determinations is de novo review. Terry Barr Sales Agency, Inc.
v. All-Lock Co., 96 F3d 174, 178 (6th Cir. 1996).
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).
|Standard for Summary Judgment - Summary judgment
must be granted if the evidence in the record demonstrates there is no
genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. FED. R. CIV. PRO. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
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.
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.
Judgment - Conclusory Allegations Insufficient
|The party adverse to a motion for summary judgment
"may not rest upon the mere allegations or denials of the adverse party's
pleading, but * * * must set forth specific facts showing that there is a
genuine issue for trial." FED. R. CIV. PRO. 56(e). The evidence must be
viewed in the light most favorable to the nonmoving party; however, "conclusory
allegations standing alone will not defeat a properly supported motion for
summary judgment." Kirkland v. St. Elizabeth Hospital, 120 F. Supp.
2d 660, 665 (N.D. Ohio 2000).
|The citations provided
here are meant to provide a quick, easily accessible statement of the law at
the time of the decision of the court. The law, however, changes. You should
not rely on these citations as the current statement of the law; rather,
they are intended to provide a path for your legal research.