IN THE SUPREME COURT OF OHIO

MELISSA DUER, ET AL.

Appellees,

VS.

ANDREW HENDERSON, ET AL.

Appellants.

CASF, NO.

a^

On Appeal from theMiami County Court of AppealsSecond Appellate DistrictCase No. 09 CA 15

APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION

Jeremy M. Tomb (0079664)Cher L. Collins (0085671)J.M. TOMB LAW, LLC124 West Main StreetTroy, Ohio 45373937-339-3939Attorneys for Appellant-Plaintifft

Philomena M. Dane (0044064)Aneca E. Lasley (0072366)Peter E. Jones (0082456)Squire, Sanders & Dempsey, LI.P200 Huntington Center41 South High StreetColumbus. Ohio 43215614-365-2700Attorney for Appellees-Defendant

TABLE OF CONTENTS

TABLE OF CONTEN'I'S ......................................................................2

1'ABLE OFA UTHORITIES .... .. ... ..... ....... .. .. ... .. .. ..... .. .. . ...... .. ..... .. ....... ..... .. ..... .. ...3

EXPLANATION OF WHY THIS CASE PRESENTS A MATTER OF PUBLICOR GREAT GENERALINTEREST .... ..... ... .. . .... .. .. ...:... ...... . .. ........... .. ....... .. ....... .. ... .. ..... .. ......4

STATEMENT OF TIIE CASE AND FAC7'S .............................................. 5

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1:

A trial court should liberally grant a motion for additional time to respond to amotion for summary judgment pursuant to Civ.R. 56(F) in order for the non-movingparty to have a reasonable amount of time to transcribe and file necessarydepositions ...... ..... .. ...... . .. ... .:.... . ... . ....... .. .. ..... . . .. .. ... .. ..... . . ..... .......... ...7

Proposition of Law No. 2

The fact that new facts are discovered at the end of the discovery periodrather than at the beginning of the discovery period should not prejudice acourt against granting a party leave to amend the complaint to assert newclaims . .. ... . . . .... .. ....... .. . . .. ... .. ....... .. .... . .. .. ..... .. .. .. . . . ..... ...... . .. . .....9

Proposition of Law No. 3Circumstantial evidence is sufficient to show the existence of a material issueof fact in order to rebut a motion for summary judgment and a court'sindependent finding of fact as to the veracity of witnesses or weight of thecircumstantial evidence is improper in deciding a motion for summaryjudgment ....... .. ... .. . ... . ... ... .. ..... .. .. . .. .. .. .. ....... .. ... . ...... .. ..... .. ... .. .. l I

CONC:LIJSION . .. ...... .... ........... .. ..... .. .. . .. .. ..... .... .. ... . . . .... .. ...... . .. ... .. . .. ..13

CERTIFICATE OF SERVICE ..................................................................14

2

TABLE OF AUTHORITIES

Cases

Michalic v. Cleveland Tcrnkers, Inc. (1960), 364 U.S. 325, 330, 81 S.Ct. 6 ..................11

Green v. B.F. Goodrich Co. (1993), 85 Ohio App.3d 223, 619 N.E.2d 497 ...................8Hirschberg v. Albright (Ohio App,1974), 67 0.O.2d 219, 322 N.E.2d 682 ..................11Mayfield v. Boy tScouts ofAm. (1994), 95 Ohio App.3d 655, 659-660, 643 N.E.2d 565....1 I

McGee v. Goodyear Atomic Corp. (1995), 103 Ohio App.3d 236, 242,659 N.E.2d 317 ...............................................................................11

Mitchell v. Ross (1984), 14 Ohio App.3d 75, 470 N.E.2d 245 ...................................8Mollette v. Portsmouth City Council (2006), 169 Ohio App.3d 557,

2006-Ohio-6289, 863 N.E:2d 1092 ........................................................10tLfuenchenhacla v. Preble Cty. (2001), 91 Ohio St.3d 141, 742 N.B.2d 1128 ...................8Peter-son v. 7'eodosio (1973), 34 Ohio St.3d 161, 175, 297 N.E.2d 113 .......................10Putka v. Par•ma (1993), 90 Ohio App.3d 647, 649, 630 N.E.2d 380 .............................8State v. Ienks (1991), 61 Ohio St.3d 259, 272, 574 N.E.2d 492 .................................11Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364 N.E.2d 267 ..................... 12

Trimble-Weher v. Weber (1997), 119 Oliio App.3d 402, 695 N.E.2d 344 ......................8

RulesCtv.R.30 ............................................................................................5, 8. 9Civ.R.32 ............................................................................................5,7,9Civ.R.56....................................................................................5, 7, 8, 9,12LOCAL RULE 3.04 ........................................................................................9

3

EXPLANATION OF WHY THIS CASE IS ONE OF PUBLICOR GREAT GENERAL INTEREST

People love a good ghost story. Nearly every town in American has its story of a

woman in white or a haunted road, or a phantom motorcyclist. Popular culture has tapped

into that phenomenon with television shows like Ghost Hunters and The Scariest Places on

Earth. But what about the people who live in those alleged haunted houses or on that

haunted stretch of road'?

This case is about a family who lives in an alleged haunted house with an alleged

haunted mill on a haunted road. Melissa Duer is the direct decedent of the Staley family and

is the current owner of the Staley Mill through direct decendency. The defendants are the

writers and publishers of an internationally available book entitled Weird Ohio: Your Travel

Guide to Ohin's Local Legends and Best Kept Secrets. 1'hat book includes a story which

identifies Duer's home and property as a haunted location. Following publication of the

book, the Duers noticed a significant increase of trespassers on their property, some of whom

vandalized the property. Despite their efforts to contact the police when they noticed

trespassers, tnost of the trespassers remained uncaught and unidentified.

The Duers' home is not the only location identified in the book. Rather, many

locations in Ohio, both public and private, are identified in the book as haunted locations.

The book is also part of a series of books which identify strange and haunted locations in

many of the states in the United States. The book contains a very small disclaimer on one of

the introductory pages that some of the locations identified in the book are private property

and trespassers could be prosecuted. The book also contains a small reference to the website

www.forgottenoh.com owned and operated by Atldrew Ilenderson, one of the authors,

4

which contains instructions on trespassing and forums where readers can post their own

trespassing stories.

This case is one of great public concern because this type of book essentially invites

people to trespass on both public and private property to search for ghosts. The ability of

those affected is hampered by the difficulty in identifying those trespassers if the police have

been unable to catch them. However, even though a considerable amount of circumstantial

evidence existed to present the case to a jury, including the very tzame of the book which

identifies itself as a travel guide, the trial court found that the lack of direct evidence was

sufficient to grant summary judgment.

I'his case further presents a question regarding the interplay of Civ.R.30 and 32 as it

pertains to presenting depositions as evidence under Civ.R.56(C). Neither the civil rules nor

the case law is clear as to whether a witness must review and sign a deposition in thirty days,

seven days or less when a sumniary judgment motion has been filed but no hearing will be

held on the motion. Without a witness's signature, the deposition nlay not be used as

evidence under Civ.R.56, yet without a hearing or trial imminent a party cannot compel a

witness to sign the deposition in less than thirty days. For these reasons, this case presents

nratters of great general interest or public concern and Plaintiff respectfully asks this court to

accept jurisdiction.

STATEMENT OF THE CASE AND FACTS

Melissa Duer is the owner by direct decendency of the Staley Mill, a historic mill and

related buildings located on Staley Road in Miami County, Ohio. In the mid-2000s the book

Weird Ohio: Your Travel Guide to Ohio's Loccrl Legends and Best Kept Secrets authored by

James Willis, Loren Coleman and Andrew Henderson was released. "fhis book was part of a

5

series of books created by Mark Moran and Mark Seeurinan and published by Sterling

Publisliing, Inc. 1'he book contained the story of "Old Man Staley," who apparently killed

his family before killing himself. Accordingly to Weird Ohio, Staley Road and the woods

along the road, which include Duer's property, are haunted.

Duer's mother C'arol Mumford initially filed this action. Ms. Mumford was elderly at

the time and concerned with the number of people trespassing on the Staley Mill property

where she lived. Ms. Mumford subsequently passed away and Duer aud her husband moved

to the home. Both Duei- and her husband were and are frequently bothered by trespassers on

the property. At times they would corne home anct find people parked in their driveway or

parked along the road by their home with people on the Duers' property. Duer had lived at

the home as a child and though the legends about the property were not new, she found that

the number of trespassers and ghost hunters increased exponentially after publication of the

book.

The trial court initially dismissed several of the claims Plaintiff asserted in their

complaint, leaving intact claims for causing another person's trespass, civil aiding and

abetting, intentional infliction of emotional distress and false light invasion of privacy. The

pai-kies engaged in significant written discovery and defendant conducted depositions of a

few trespassers who were actually identified. None of these trespassers indicated they had

read the Weird Ohio book. Most trespassers were never identified or deposed.

Plaintiff condueted the deposition of Jaines Willis on January 30, 2009. The

deposition of Mark Moran was conducted on February 16, 2009, after the discovery cutoff of

February 6, 2009, due to repeated scheduling difficulties with Mr. Moran and his counsel.

Defendant filed a motion for sumnrary judgnient and on February 17, 2009 Plaintiff filed a

6

motion to ainend the complaint based upon infonnation she had discovered during the

depositions of Willis and Moran. She also requested additional time to file her memorandum

in opposition to the motion for summary judgment timder Civ.R.56(F) to allow her time to

file the depositions of Willis and Moran, the former of which had not yet been reviewed and

signed and the latter of which had not yet been transcribed. The court denied the motion

under Civ.R.56(F), holding that since Plaintiif had sufficient infol-mation to file a inotion for

summary judgment against Defendant Andrew Henderson, who operated a website in

addition to aithoring the book, then Plaintiff had sufficient inforniation to respond to the

pending tnotion for suminary judgment. `I'he court then granted the motion for summary

judgment as unopposed the day following its denial of the motion under Civ.R.56(F).

Plaintiff appealed to the Second District Court of Appeals. The appellate court

upheld the trial court's decisions on all matters. Specifically, the appellate court lield that the

court did not abuse its discretion under Civ.R.56(F) because the deposition transeripts could

have been iiled pursuant to Civ. R. 32 two days before the hearing on the summary judgment.

This was not the reason citcd by the trial court for the denial and no hearing on the motion for

summary judgmentwas ever scheduled. The appellate court also upheld the trial court's

granting of summary judgment, adopting the trial court's finding that Plaintifi's 911 calls

regarding trespassers were "pufting" and that the circumstantial evidence presented by

Plaintiff was not sufficient to create a material issue of fact. Plaintiff now appeals the

appellate court's decision of December 23, 2009.

Proposition of Law No. 1:

A trial court should liberally grant a motion for additional time to respond to amotion for summary judgment pursuant to Civ.R. 56(F) in order for thenon-moving party to have a reasonable amount of time to transcribe and filenecessary depositions.

7

A deposition transcript must be authenticated before it can be legally acceptable

evidence for summary judginent purposes. Putka v. Parma (1993), 90 Ohio App.3d 647,

649, 630 N.E.2d 380, abrogated on otlzer grounds by Muenchenbach v. Preble Cty. (2001),

91 Ohio St.3d 141, 742 N.E.2d 1128. Documents subnritted in opposition to a motion for

summary judgment which are not sworn, certified or authenticated by affidavit have no

evidentiary value and nzay not be considered by a court in deciding the motion for sunnnary

judgment. Green v. B.F. Goodrich Co. (1993), 85 Ohio App.3d 223, 619 N.E.2d 497. See

also Mitchell v. Ross (1984), 14 Ohio App.3d 75, 470 N.E.2d 245 (holding that single page of

depositions submitted in support of motion for suminary judgment where the deposition was

not filed and the page not authenticated could not be used for puiposes of summary

judgment).

Under Civ.R.30 a deposition shall be transcribed and the officer "shall certify on the

transcribed deposition that the witness was fiilty sworn or affirmed by the officer and that the

transcribed deposition is a true record of the testimony given by the witness."

Civ.R.30(F)(emphasis added). Without the court reporter's certification, a deposition

transcript cannot be considered a"depositiori' for purposes of Civ.R.56(C). Trimble-Weber

v. Weber (1997), 119 Ohio App.3d 402, 695 N.E.2d 344, Prior to a deposition being filed, a

witness has thirty days to review the deposition transcript, make any changes and sign the

deposition. Civ.R.30. When a hearing or trial is scheduled, that period may be reduced to

seven days or shorter. id.

Plaintiff conducted the depositions of James Willis on January 30, 2009 and the

deposition of Mark Moran on February 16, 2009, just seventeen days and one day,

respectively, before Plaintiff liled her motion for an extension of time under Civ.R.56(F).

8

Plaintiff's motion for an extension sought additional time for the depositions to be reviewed

and signed by the witnesses and filed by the court reporter so Plaintiff could use them in

support of her metnorandum in opposition. The appellate court concluded that the

depositions did not need to be filed before or contemporaneously with Plaintiff's

memorandum in oppositiou to the motion for sutninary judgment but rather could be filed

two days before a trial or hearing pursuant to Civ.R. 32. However, under Local Rule 3.04 of

the Miami County Court of Common Pleas, a summary judgment motion is submitted on

briefs twenty days after the filing of the motion for summary judgment. A problem arises, as

it did in this case, when no trial or hearing is scheduled after a deposition is conducted. A

witness then has thirly days to review and sign his or her deposition. Civ.R. 30(E). Until the

deposition is signed and authenticated, it cannot be used as evidence under Civ.R. 56(C).

Putka, supra. While the deposition of Willis would have been signed and filed prior to the

submission date for the motion Por summary judgment, Moran would still be within his time

period to review and sign his deposition under Civ. R. 30(E) and his deposition would not

have been available for PlaintifPs use in opposition to the summary judgment motion. In

such an instance, a brief extettsion of time pursuant to Civ.R.56(F) would have been

appropriate to allow the deposition to be filed. A court's failure to grant the motion is an

abuse of discretion. For this reason, Plaintiff requests the court accept this jurisdiction and

perniit the parties to brief the issue.

Proposition of Law No. 2

The fact that new facts are discovered at the end of the discovery period ratherthan at the beginning of the discovery period should not prejudice a courtagainst granting a party leave to amend the complaint to assert new claims.

Ohio favors a liberal policy in allowing a Plaintiff to amend a complaint, as long as

9

the amendment is not the result of bad faith, undue delay or undue prejudice to the opposing

party. Mollette v. Portsmouth City Council (2006), 169 Ohio App.3d 557, 2006-Ohio-6289,

863 N.E.2d 1092. "[W]here it is possible that the plaintif£ by an amended complaint, niay

set forth a claim upon which relief can be granted, and it is tendered timely and in good faith

and no reason is apparent or disclosed for denyiiig leave, the denial of leave to file such

amended complaint is an abuse of discretion," Peterson v. Teodosio (1973), 34 Ohio St.3d

161, 175, 297 N.E.2d 113.

Plaintil'f' filed her motion to amend her complaint on February 17, 2009 just after the

close of discovery on February 6, 2009. By agreement of the parties, the discovery

deposition of Defendant Marlc Moran was not conducted until February 16, 2009, the day

before Plaintiff's motion. Plaintiff learned during the course of these depositions that there

were additional clainis she could assei-t against the defendants which related to the business

relationships between the various defendants and based upon a complete failure by the

defendauts to conduct any sort of investigation as to veracity of the Staley Road story despite

their admitted ability to do so. The trial court denied this request to amend, finding that the

request was untimely since it was filed at the close of discovery and that it was in bad faith,

citing what it believed to be dilatory discovery conduct by the plaintiff in conducting only

two depositions during the courseof discovery. However, the trial court failed to take into

consideration the considerable written discovery conducted by Plaintiff. Further, Plaintiff

asserted, and it is uncontraverted, that she did not know of the facts she learned in the

depositions at any time prior to the depositions. Nothing in Plaintiff's conduct in filing her

motion to amend one day after the deposition in which she learned of the new facts may be

construed a bad faith or undue delay. Further, though deposition testimony is one tool a

10

party may use during the coLirse of discovery, nothing in the civil rules nor the caselaw lavors

the use of depositions over any other form of discovery. 'fo penalize a party for not

conducting enough depositions or waiting until the end of the discovery period to conduct

depositions is an abuse ofdiscretion. For this reason, Plaintiff respectfully requests this court

acceptjurisdiction.

Proposition of Law No. 3Circumstantial evidence is sufficient to show the existence of a material issue offact in order to rebut a motion for summary judgment and a court'sindependent finding of fact as to the veracity of witnesses or weight of thecircumstantial evidence is improper in deciding a motion for summaryjudgment.

Circumstantial evidence has long been held to be just as good as direct evidence in

both eriniinal and civil cases, and in some instances circumstantial evidence may be even

more persuasive tlian direct evideuce. Michalic v. Cleveland Tankers, Inc. (1960), 364 U.S.

325, 330, 81 S.Ct. 6; State v. Jenks (1991). 61 Ohio St.3d 259, 272, 574 N.E.2d 492. There is

absohitely nothing in the law whicli prevents a trier of fact trom determining a case based

solely upon the basis of circumstantial evidence. McGee v. Goodyear Atorraic Corp. (1995),

103 Ohio App.3d 236, 242, 659 N.F..2d 317. "It is generally inappropriate to consider either

"the quantam" or the "superior credibility" of evidence in analyzing a motion for summary

judgment." Id., citing Hirschberg v. Albright (Oliio App.1974), 67 0.0.2d 219, 322 N.E.2d

682. In determining whether a triable issue of fact exists, a court should not pass judgment

regarding the credibility of witnesses or weight the value of the evidence. Nlayfield v. Boy

Scouts of Am, (1994), 95 Ohio App.3d 655, 659-6060, 643 N.E.2d 565. Rather, the court

should construe the evidence in the light most favorable to the non-moving party and grant

summary judgment only when there are no genuine issues of material fact and reasonable

tninds can come to but one conclusion. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d

11

317, 364 N.E.2d 267.

Even absent a response by Plaintifl'to the motion for summary judgment due to the

denial of Plaintiffls motion pursuant to Civ.R.56(F), the record before the court still

contained suificient circunistantial evidence that Defendants oould be held liable for the

trespass of others and for aiding and abetting others in eommitting tortious acts on Plaintitl's

property. Plaintiff submitted police reports to the court documenting every call to the police

in the years since publication of the book. Both the trial court and appellate coui-t addressed

these reports in their opinions, finding that the reports of trespassing were "pufiing" on the

part of the Plaintiff in order to bolster their case. This finding impermissibly passed

judgment on the credibility of Plaintiff in making the reports.

Both courts then point to the fact that Plaintiff failed to depose a single trespasser who

said they learned of the property through the Weird Ohio book. Of the trespassers seen by

Plaintiff and reported to the police, only a very few trespassers were identified and deposed.

This type of direct evidence is certainly persuasive, but it is not the province of the courts to

pass judgment on the weight of the evidence at the summary judgment stage. Rather, these

findings impermissibly create a presumption that direct evidence is inherently better than

circumstantial evidence, which this court has in the past declined to do.

The decisions of the trial couit and appellate court 1'urtlier fail to construe the

evidence in the light most favorable to Plaintiff, as the nonnloving party. Because only a few

of the trespassers were identified and the number of trespassers on the property increased

after the book was published, constiuction of the evidence in the light most favorable to

plaintiff would result in a deterinination that any number of the multitude of unidentified and

undeposed trespassers could have7ocated the proper-ty based upon the Weird Ohio book.

12

The matters of the veracity of Plaintiff and the sufficiency of the circumstantial evidence to

support Plaintilj's claims were properly matters for the jury. Both the trial court and the

appellate court impermissibly made conclusions regarding the veracity of witnesses and

passed judgment regarding the quantum and quality of evidence, essentially depriving

Plaintiff of her constitutional right to ajury trial. Both eourts further failed to construe the

evidence presented in the light most favorable to Plaintiff. For this reason, Plaintiff

respectfully requests this court accept jurisdiction.

CONCLUSION

For these reasons, this case involves matters of public or great general interest and

Plaintiff respectfully requests thisCourt accept jurisdicfion.

Respectfully submitted,

Jeremy^omb ^(^i079664)Cber L. , llins (Oib85671)124 W^ Main Streetfroy, OH 45373(937) 339-3939(937) 440-1659 facsimile'er^ emytombPtomblaw.comAttorneys for Plaintiff- Appellant

13

CERTIFICATE OF SERVICE

I hereby certify that a ttue and accurate copy of the foregoing document was served,by regular U.S. mail, this `? day of February, 2010 upon the following:

Philomena M. Dane (0044064)Aneca E. Lasley (0072366)Peter E. Jones (0082456)Squire, Sanders & Dempsey, LLP200 Huntington Center41 South High StreetColumbus, Ohio 43215Attorneys_for Plaintiffs - Appellees

Jeremy M.^I'omb- 6674)Attorney f'orDefe dant - Appe

/ ,.'

14

ICite as Dner v. Henderson, 2009-Ohio-6815.1

IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO

MELISSA DUER, et al.

Plaintiffs-Appellants : C.A. CASE NO. 2009 CA 15

V.

ANDI2EW HENDERSON, et al.

Defendants-Appellees

T.C. NO. 08-94

(Civil appeal fromCommon Pleas Court)

OPINION

Rendered on the 23`d day of December , 2009.

JEREMY M.'fOMB, Atty. Reg. No. 0079664, 124 West Main Street, 'T'roy, Ohio 45373

Attomcy for Plaintiffs-Appellants

PHLLOMENA M. DANE, Atty. Reg. No. 0044064 and ANECA E. LASLEY, Atty. Reg. No.0072366 and PETER E. JONES, Atty. Reg. No. 0082456, 41 South High Street, Suite 2000,Columbus, Ohio 43215

Attorncys for Defendants-Appellees

DONOVAN, P.J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Melissa Duer, et al.

filed April 28, 2009. On January 25, 2008, Duer, individually, and as successor trustee for the

Clialnler S. Staley Trust, as alternate successor trustee for the Carol M. Mumford "T'rust, and as

administrator of the estate of Carol M. Mumford, 61ed a Complaint for Money Damages against

2

Andrew Heudersott, James Willis, Loren Coleman, Sterling Publishing Co., Inc., Mark

Sceurman, and Mark Moran. A complaint against these defendants, styled Mumford v.

Henderson, was previously filed on July 14, 2006, and it was voluntarily dismissed on September

25, 2006. The plaintiffs therein were Carol M. Mumtord, individually and as trustee t'or the

Carol M. Mumford Trust, and Duer, who is Mumford's daughter.

{¶ 2} Duer holds title as tenant in common to a one-half interest of real property located

at 7095 Staley Road, in New Carlisle, where slie resides with her husband. According to Duer,

the "Staley Farm has been in uninterrupted possession of the Staley Family since Elias Staley

purchased it from Jotm Rench in 1825 until the current owner and direct Staley descendent,

Melissa Duer." The property is hoine to a mill structure which has significant historical status in

the United States. Mumford co-authored a book about the property, entitled "A Hastory of'

Elizabeth Township, " and Duer'scomplaint asserts that the book "reports the definitive history

of the Staley Farm, the Staley Mill, and the families that have resided there from its construction

to the present-day occupants."

{¶ 3} Duer asserts that the defendants "participated in the writing, publishing, and sale

of a book titled `Weird Ohio' which was first available in Miami County, Ohio, in December of

2005," and that they "participated in the writing, publishing and dissemination of materials on

the website [forgottenoh]" and that both the book and the web site "contain numerous statements

and claitns about the Staley Farm and the Staley family." As a result of the defendants' actions,

Duer asserts that the "Staley Farm continues to be repeatedly trespassed upon and vandalized."

{14} The front cover of Weird Ohio proclaims the book to be "Your Travel Guide to

Oiiio's Local Legends and Best Kept Secrets." One chapter is entitled, "Murder and Mayhem on

3

Staley Road," and it briefly describes the history of the Staley Mill. '1'he chapter further

provides, "As with any good legend, this one is short, bloody and vague. '1'he story centers

around `Old Mari Stalcy,' who apparently was not such a nice man after all. One night,

according to the legend, he snapped and murdered his entire family and everyone else in the

house, inchiding the servants. When the bloody killing spree was over, Staley somehow turned

the ax on himself and took his own life.

{15} ""l'oday, it is said that if you drive down Staley Road late at night, an invisible

force will grab hold of your car, causing it to do everything from swerving wildly to stalling out.

Some have also reported headlights dyitig or horns `getting stuck' and honking continually.

There are even reports of seeing the ghost of Old Man Staley walking through the woods or

pacing around the ruins of his old mansion.

{9I G} "It's ioteresting to note that while the Staley family's claim to fame was the mill,

it doesn't play much of a role in the legend. Instead, most of the ghostly activity is said to take

place in the woods along Staley Road. ***:" The end of the chapter contains a reprint of an

allegedly anonymous email message describing a frightful experience on Staley Road.

f1[ 7) Duer's complaint asserted claims for trespass to land, slander of title, incitement

to imminent lawless action, civil aiding and abetting, two claims of invasion of privacy (false

light and unreasonable publicity given to the other's private life or appropriation of the plaintiffls

name or likeness), intentional or reckless infliction of emotional distress, negligetit infliction of

emotional distress, and punitive damages.

{ll 81 The defendants moved to dismiss Duer's complaint, and on April 11, 2008, the

trial court overruled the motion as to Duer's cause of action for trespass to land, for civil aiding

4

and abetting, tor invasion of privacy (false light) as to Duer individually, for intentional

infliction of emotional distress and for punitive dainages; it granted the motion as to Duer's

cause of action for slander of title, for inciteinent to imminent lawless action, for invasion of

privacy (false light) as to the trust and estate, for invasion of privacy (unreasonable publicity or

wrongful intrusion into the plaintift's private activities), and for negligent infliction of einotional

distress.

{¶ 91 Willis, Coleman, Moran, Sceurman and Sterling Publishing ("Appellees") moved

the court for summary judgment on the remaining claims. Duer filed a motion for summary

judgment against Hendeison, and she moved the coui-t for an extension of time to respond to

Appellees' motion for summary judgment.

{¶ 10} The court overruled the motion for an extension of time. Duer also filed a

motion for leave to file an amended complaint, and a motion to extend the discovery cutoff and

continue the trial date of March 17, 2009, which the court also overruled.

{¶ 11} On March 5, 2009, he trial court granted Appellees' motion for summary

judgment on Duer's renlaining claiins, and it dismissed the case as to Appellees. Duer tiled a

motion to reconsider her niotion for an extension of titne to respond to Appellees' suinmary

judgment motion and to vacate the court's entry granting summary judgment, which the court

overruled.

}¶ 12) On Marcli 9, 2009,the court issued an Entry that provides that the matter came on

for a final pr etrial eonference pursuaiit to the cou.•t's scheduling order, and that Henderson failed

to appear and failed to submit asetttement/final pretrial conference report. "I'he court struck

Henderson's Answer frotn the record "as an appropriate sanction."

5

{¶ 13} Duer orally moved for default judgtnent against Hetiderson, and she filed a motion

to amend her prayer for relief, seeking to enjoin Henderson ti-om maintaining a website that

"publiciz[es] the false story about the Staley family and property." On April 9"', the trial court,

following a hearing that Iienderson failed to attend, granted default judgment in favor of Duer

and also granted Duer's motion to amend the prayer of relief. 'I'he court awarded Duer

"damages, including attorney fees, in the amount requested, $129,794.11 plus interest fi•om the

datc of this judgment at 5% per anmun and the costs of the action," and it further enjoined

Henderson "from maintaining reference to the Staley story on Itis website, or creating other

references to the Staley property on another website."

111141 Duer asserts four assignments of error. Her first assignment of error is as

Pollows:

{¶ 15} "THE TRIAL COURT ABUSED ITS DISCRI;TION IN OVERRULING

APPELLANT'S MOTION FOR ADDITIONAL TIME TO RESPONI) TO APPELLGES'

MOTION FOR StIMMARY JUDGMENT."

{¶ 16} In overruling Duer's motion, the trial court determined, "Not only has sufficient

time been allotted the parties but the Plaintiff had sufficient time to prepare and file her niotion

for sutnmaryjudgment against Defendaut Andrew Henderson.

{¶ 17} "A response to the other Defendants' motion could just have easily been

pr'epared."

{1118} According to Duer, she requested additional tinie to "allow depositions which had

already been taken to be Gled pursuant to Civ.R. 30." Duer asserts a "sufficient basis for a

continuance and further discovery is a finding that the moving party is in exclusive knowledge or

6

control of facts concerning the central issue of the rnotion for sumniaiy judgment." Duer argues

that at the time of her motion for a continuance, "several depositions had been taken, including

the deposition of James Willis and Mark Moran. However, those depositions had not been

reviewed and signed, as required by Civ.R. 30 and could neither be filed tior used as evidence."

Duer asserts that the Moran and Willis depositions contained facts "which were solely within the

knowledge of Appellees and were not obtainable from any other source." Duer asserts that the

claims against IIendetson and the Appellees have a similar legal basis, but that "the material

faets supporting the claims are different." Finally, Duer asserts that the trial court violated her

right to substantial justice under Civ.R. 61 in deaying her motion for a continuance and granting

the motion for stmmiary judgment the next day.

{¶ 191 Appellees respond, "During more than ten months of discovery, Appellants did

virtually nothing. 'I'hen after the close of discovery, and just four weeks before trial, Appellants

moved for additional tinie to respond to Appellees' motion for sutntnary judgment. Although

thirteen depositions in total were taken, Appellants took only two, and one, the deposition of

Appellee Mark Moran (a resident of New Jersey), they did not request until one week before the

close of discovery ." Appellees assert that Duer's "failure to conduct any significant discovery,

to timely seek leave to Hle their amended complaint, or to marshal any evidence in support ot'

their existing or proposed claims warranted the court's denial of their Rule 56(F) motion ***:'

Appellees further assert that Duer was not denied substantial justice.

{12"1 A trial court's procedural rulings will not be reversed absent an abuse of

discretion. flarmon v. &aldwin, 107 Ohio St.3d 232, 2005-Ohio-6264, ¶ 16. "`Abuse of

discretion' connotes an unreasonable, arbitrary, or unconscionable attitude." Id. (citation

7

omitted).

{1121} Civ.R.56(F) allows the trial court to grant a continuanec so that a party may obtain

additional discovery in order to oppose a tnotion for summary judgment. "Because summary

judgment is generally disfavored when there is a realistic possibility that genuine issues of

material fact exist, the court's discretion with respect to a Civ.R. 56(F) motion should be

exercised liberally in favor of a.. party who proposes a reasonable period of time to obtain

discovery necessary to oppose the motion for summary judgment." Wombold v. Barna (Dec. 11,

1998), Montgomery App. No. 17035 (Citation omitted). "A party seeking a Civ.R. 56(F)

continuanee has the burden of establishing a factual basis and reasons why the party cannot

present sufficiettt documentary evidence without a continuance." Shirdon v. Houston,

Montgomery App. No. 21529, 2006-Ohio-4521, ¶ 10. "Moreover, `* * * the burden is upon the

party seeking to defer the court's action on a motion for summary judgment to demonstrate that a

continuatlce is warranted.' (Citation omitted)

{¶ 22} "The party seeking additional time must do more than merely assert generally the

need for additional discovery. 'Mere allegations requesting a continuance or deferral of action

for the purpose of discovery are not sufHcient reasons why a party cannot present affidavits in

opposition to the motion for summary judgment. There must be a factual basis stated and

reasons given why it cannot present facts essential to its opposition to the motion.' (Citation

omitted). `Furthermore, a judgment preventing the requesting patl.y from pursuing discovery

will aot bc reversed rmless the ruling causes substantial prejudice."' (Citation omitted).

Woiribold

11231 Civ.R. 32(A) provides, in part, "Every deposition intended to be presented as

8

evidence must be filed at least one day before the day of trial or hearing unless for good cause

shown the court permits a later liling." "I'he filing requirement is intended `to prevent surprise

to the party against whom the deposition is to be used and to place the document with the court

prior to the proceedings."' Weiner v. Kwiat, Montgomery App. No. 19289, 2003-Ohio-3409, ¶

145.

{¶ 24} On May 22, 2008, the trial court set a discovery deadline of February 6, 2009, a

sumtnaryjudgment deadline of February 9, 2009, and a response to summaryjudgment deadline,

pursuant to Loc.R.3.03, "by the fourteenth day after the day on which the motion was filed."

Duer filed her request for additional time on February 17, 2009. In support of her request, Duer

relied upon the affidavit of her attorney, which provides that he deposed Willis on Januaty 30

and Moran on February 16, 2009(aiter the deadline, by agreement of the parties). Willis and

Moran did not waive signing their depositions and, according to Duer, "Plaintiff is unable to

obtain the information contained in these depositions from any other source and will be unable to

adequately respond to Defendant's motion for summary judgmettt until these depositions are

filed."

{^ 25} Under the eireumstances, we cannot conclude that the trial court abused its

discretion in refusing to grant a continuance. As Appellees assert, from the date of the original

filing, Duer had ample time to establish some connection between the alleged trespassers and the

publicatiott of the book Weird Ohio. Importantly, the affidavit of Duer's counsel does not assert

that specific future discovery was needed to respond to Appellees' summary judgment motion.

See, for example, Hartwell v. Volunteers of.2merica (1987), 2 Ohio App.3d 37 (finding that trial

court erred in failing to rnde on motion for continuance where supporting affidavit stated that "the

9

facts eoncerning the isstie of whether the driver of defendant's truck was acting within the scope

of his employment at the time of the accident is totally within the knowledge of defendant, its

officers and employees. Because said issue is central to the detertnination of the motion for

summary judgment, plaintif'fs have demonstrated sufficient reasons why they cannot oppose the

motion for sLnnmary judgment by affidavit.")

{¶ 261 While Duer asserts, for the fiist time in her Reply Brief, that she "sought

additional time in her motion to locate and interview trespassers on the property;" sttch a reason

was not presented in the affidavit supporting Duer's motion, and such "mere allegations

requesting a continuance" for the purpose of diseovery are insufT icient. Wonebold.

{¶ 271 The fact that the depositions had not been filed did not prevent Duer from relying

upon them in drafting a response to Appellees' motion for summary judgment, and Duer has

provided no authority to the contrary. In fact, Duer supported her own F'ebruary 11, 2009

motion for sunimary judgment against lienderson in part with the deposition of Jacob Jones,

although Jones' deposition was not filed with the court until February 26, 2009. Willis'

deposition, and the depositions of several other witnesses are also attached to Duer's summary

judginent motion. We further note that Duer cited to Willis' deposition in her Motion for Leave

to File Ameided Complaint and referred to Moran's deposition in her Motion to Continue Trial

Date atid lixtend Discovery Cutoff Date, belying her claim that the information in the unfiled

depositions was "solely within the knowledge or possession of' Appellees."

{¶28} Finally, we agree with Appellees that the trial court's action in granting

Appellees' motion for summary judgment the day after denying the request for the eontinuance

was not "inconsistent with substantial justice." Civ.R. 61. See Dnrriolt v. MV.H.G., Inc.,

10

Montgomery App. No. 20040, 2004-Ohio-867, ¶ 47 (finding no abuse of discretion in denying

continnance and granting unopposed summary judgment on the same day "where the party's own

lack of diligence undermines any claim that sufficient reasons exist" to grant a eon6nuance.)

{¶ 29) Given Duer's lack of diligence and delay, the trial court did not abuse its

discretion in overruling the tnotion for additional time to respond to Appellees' ntotion for

summary judgment, and Duer's first assignment of error is overruled.

{^ 30) Duer's second assignment of error, inchiding its subparts, is as follows:

{1131} "THE TRIAL COUR'I' ERRED IN GRANTING THE APPELLELS' MOTION

FOR SUMMARY JUDGMENT AND DISMISSING THE CASE AGAINST APPEL] EES °'

{¶ 32) "Civ. R. 56(C) provides that summary judgment may be granted when the moving

party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is

entitled to judginent as a matter of law, and (3) viewing the evidence most strongly in favor of

the ttonmoving party, reasonable minds can come to but one conclusion and that conclusion is

adverse to the party against whoni the motion for sumnlary judgment is inade. (Internal citations

omitted). Our review of the trial court's decision to grant sumntary judgment is de novo."

Cohen v. U/C Contracting Corp., Greene App. No. 2006 CA 102, 2007-Ohio-4888.

"A. The Trial Court Erred in Finding that Appellees Were Not Liable for the

Trespass of Others."

{ll 331 'I'he trial court detertnined that Appellees established that nonc of them trespassed

on Duer's property or caused third parties to do so, and that Duer did not rebut Appellees'

evidence.

{¶ 34) According to Duer, a trier of fact could conclude that "Appellees were aware that

the `Staley story' they wrote and published would lead to their readers trespassing" on the Staley

11

property. "Further, a trier of fact could find that the book, which holds itself out as a travel

guide, encouraged or advised readers to visit the locations listed in the book."

{¶ 351 "A trespass on land subjects the trespasser to liability for physical harm to the

possessor of the land at the time of the trespass, or to the land or to his things, * * * caused by

any act done, activity carried on, or condition created by the trespasser, itTespective of whether

his conduct is such as would subject him to liability were he not a trespasser. (Citations

omitted). The determination of a trespasser's liability for claiined damages thus turns on

whether any act or omission of the trespasser caused the damages claimed." bfarkey v. Barrett

(March 8, 1996), Montgomery App. No. 15243. One may also be liable for trespass if he or she

causes a thing or third person to.intentionally enter land in possession of another. Baker v.

Shyrnkiv (1983), 6 Ohio St.3d 151,153 (citing Restatement ofTorts 2d 277, Section 158.)

{¶ 361 Having reviewed the record, we conclude that the trial court correctly found that

no genuine issue of material fact existed as to Duer's claim for trespass to land. The title page

of Weird Ohio provides as follows: "Weird Ohio is intended as entertainment to present a

historical record of local legends, folklore, and sites throughout Ohio. Many of these legends

and stories cannot be independently confirmed or corroborated, and authors and publisher make

no representation as to their factual accuracy. The reader should Tie advised that many ofthe

sites described in Weird Ohio are located on privale property and shoxr/d not be visited, or you

rnay face prosecution fin• trespassing. " (Emphasis added).

(¶ 37; Tn her Reply brief; Duer asserts that "Appellees point to the table of coutents [with

the above disclaimer], which has never been introduced as evidence in this matter.°" We note,

however, that the page containing the disclaimer was identified by Moran in liis deposition as a

12

true and accurate copy of the book's title page.

{138} While Duer asserts that readers of Weird Ohio "are encouraged to visit the

website" forgottettohio, the only mentiott in the book of the website that is part of the record

before us is not a directive to readers but merely states, "Since 1999, [Andrew Henderson] has

run the popular Web site Porgotten Ohio, and his first book, I'orgotten Columbus, was published

in 2002."

{li 39} Most impotKantly, Appellees deposed nine of the alleged trespassers identified by

Duer, and none of them were familiar with Weird Ohio when they visited the property. One

deponent, Jacob Jones, provided a written statement that he `researched `haunted places near

Springfield, Ohio' on google.com and found the *** web page from forgottenoh.com wliich

gave me enough information to further search on google con1 for directions to the locatioti which

I used to visit the Staley Mill." Jo.nes was the only deponent who indicated any familiarity with

the website, and he testified at deposition that he had not read Weird Olrio.

{¶ 40} As the trial court determined, there is no evidence that Appellees caused any

third parties to trespass on the Staley property. There being no gentune issue of material fact,

the trial court correctly granted summary judgment on this claim.

"B. 'Phe Trial Court Erred in Finding that Appellees Did not Aid and Abet Others inCarrying Out Tortious [sic] Acts on Appellant's Property."

{1141} The trial court determined that Appellees produced unrebutted evidence that they

did not "substantially induce or incite or encourage anyone to carry out a tortuous act on [Duer's]

property."

11142) According to Duer, although "Appellees were not present when readers of the

book Weird Ohio trespassed on the property of Appellants, they provided the means and

13

encouragement for the rcaders to trespass and gave trespassers enough information to find the

locations of Appellants' property."

i1I 43} "In tlelna Casualty and Surety Co. v. Leahey Construction Co., Inc. (6`s Cir.

2000), 219 F.3d 519, the eourt found that under Ohio law a tort of civil aiding and abetting, as set

forth by the Restatement (Second) of "lbrts, is a viable cause of action. Id at 532-533. In a

civil aiding and abetting case, a plaintiff must show `two elements: (1) knowledge that the

primary paily's conduct is a breach of duty and (2) substantial assistance or encouragement to the

primary pai-ty in carrying out the tortuous act."' Kimble Mixer Co. V. Hall, Tuscarawas App.

No. 2003 AP 01 0003, 2005-Ohio-794, ¶ 45 (citation omitted).

{¶ 44} There is no evidence in the record that Appellees encouraged or provided

substantial assistance to anyone to trespass upon Duer's property; Weird Ohio expressly advises

its readers that they may face prosecution for trespassing, and none of the deponcnts had read the

book when they visited the propeiTy. There being no gemiine issue of material fact, the trial court

properly granted summary judgment in favor of Appellees on Duer's civil aiding and abetting

claiin.

"C. The Trial Court Erred in Finding that Appellee's Actions Did Not Place

Appellants in a False Light."

{¶[ 45} Duer asserts that the story in Weird Ohio, though "presented as true, *** is a

highly fictionalized and shocking depiction of the history of Appellant Duer's family. It

offensively implies that Appellant Duer is not the direct decedent [sic] of Elias Staley and that

she is the decedent [sic] of a mass mtuderer."

{¶ 46} "In Ohio, one who gives publicity to a matter concerning another that places the

other before the public in a false light is subject to liability to the other for invasion of his

14

privacy, if (a) the false light in which the other was placed would be highly offensive to a

reasonable person, and (b) the actor had knowledge of or acted in recl<Iess disregard as to the

falsity of the publicized matter and the false light in which the other would be placed." Welling

v. Weinfeld, 113 Ohio St.3d 464, 2007-Ohio-2451,11 61. Further, torts of invasion of privacy are

personal and mtist he brought by "'a living individual whose privacy has been invaded."'

Rothstein v. Monlefiore Homes, (Dec. 23, 1996), 116 Ohio App.3d 775, quoting Restatement of

the Law 2d, Torts (1977), Section 6521.

{¶ 47) We note that the trial court dismissed the false light cause of action as to the trusts

and the estate, sustaining it only as to Duer individually, There is no mention of Duer in Wedr•d

Ohio, as the trial court noted, but only of Elias, David, Andrew and "Old Man Staley."

Regarding her ancestors, Duer testified as follows:

{¶ 481 "Q. *** The second portion of the story there, who's the character that commits

the heinous axing of people? Who's the character that does that?

{li 491 "A. Old Man Staley.

{¶ 501 "Q. * * * Does it identify who Old Man Staley is?

111511 "A. It doesn't need to. It already explained who he was,

{¶ 521 "Q. * * * Who is Old Man Staley?

{¶ 53) "A. According to the book and the inferences, it would be Andrew.

{¶ 54} * *

{ll 551 "A. Or possibly Flias or David.

(¶ 56) "Q. * * * So it could be any of those three?

111571 "A. Uh-huh.

15

f¶ 58) "Q. But we don't know who, correct?

11159) "A. No. It was meant to be that way."

{¶60} Duer has no causeof action for invasion of her privacy where the statements at

issue do not concern Duer herself. Rothstein. In other words, Duer's privacy has not been

invaded. Finally, as Appellees assert, the book's disclaimer, asserting that "the authors and

publisher make no representation as to [the] factual accuracy" of the "legends" and "stories"

containecl in the book undermines Duer's argument that the story constitutes a false statemettt of

fact. There being tto genuine issue of material fact, the trial court properly granted summary

judgment on this claim.

"D. 'I'he Trial Court Erred in Finding Tliat Appellees Did Not Intentionally CauseEmotional Distriet [sic] to Appellants."

{li 61} The trial court determined that Appellees presented evidence that "they never

intended to cause emotional distress * * * nor was the article about the property in question so

extreme and outrageous so as to go beyond all bounds of decency."

{¶ 62} Duer argues that Appellees "published the book without notifying the owners of

properties ancl without attempting to verify the stories or seek permission to publish them. A

trier of fact could find this is extreme and outrageous behavior."

{¶ 63} A claim of intentional infliction of emotional distress "requires proof of extremc

and outrageous conduct of an intentional or reckless charaoter. Yeager v. Local Union 20,

Teamsters, C'hauffers, Warehousemett & Helpers of America (1983), 6 Ohio St.3d 369 ***.

For that purpose, a claimant must prove that 'the conduct has been so outrageous in character,

and so extreme itt degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.' Id., at 375 *** quoting

16

Restateinent of the Law 2d, Torts (1965), 73, § 46." Dunina v. SlempZe, Montgomery App. No.

21992, 2008-Ohio-2064, ^, 13.

{¶64} The Appellees did not create the story at issue. For example, Wilson Jones

testified that he had heard "35 years ago roughly" that the Staley property was haunted. Duer

acknowledged in her deposition that versions of the Staley property story appeared on other

websites in addition to the one at issue herein. Weird Ohio contains a disclaimer asserting that it

is "intended as entertainment," and it expressly makes no representation as to the factual

accuracy of the stories. As determined above, there is nothing in Weird Ohio that encourages its

readers to trespass on Duer's property, and Duer is not mentioned in the book. Since Appellees'

conduct is not "atrocious, and utterly intolerable in a civilized society," the trial court properly

granted summai-y judgment in favor of Appellees on this claim.

{¶ 65) Since there are no genuine issues of material fact regarding the above claims,

Duer's second assignment of error is overruled.

{¶ 661 Duer's third assignment of error, inchiding subparts, is as follows:

{¶ 67} "THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION TO

DISMISS APPELLANTS' CLAIMS FOR INCITEMENT TO IMMINENT LAWLESS

ACTION, INVASION OF PRIVACY (FALSE LIGHT) AS AGAINST THE CHALMER S.

STALEY TRUST_ INVASION OF PRIVACY - UNREASONABLE PIIBLICITY OR

WRONGFUL INTRUSION INTO THE APPELLANTS' PRIVAI'E ACTIVITIES, AND

NECLIGENT INFLICTIGN OF EMGTIONAL. DISTRESS; AS APPELLANTS' COMPLAINT

HAD ALLEGED SUFFICIEN'1' FACTS TO STATE "I'HF.iR CLAIMS FOR RELIEF UNDER

OHIO LA W.°'

17

{¶ 681 "Att order granting a Civ.R. 12(B)(6) motion to dismiss is subject to de novo

review. (Citation omitted). In reviewing whether a motion to dismiss should be grauted, we

accept as tilie all factual allegations in the complaint." (Citation omitted). Perrysburg 7bwn.rhip

v. City ofRassford, 103 Ohio St.3d 70, 2004-Ohio-4362, ¶ 5.

"A. I'he trial court should not liave dismissed Appellants' claims for incitcment toimminent lawless action as Appellants' complaint had alleged sufficient facts to

state their claim for relief under Oliio law."

{j[ 69} The trial court determined that the tort of "incitement to imminent lawless action"

is ttot recognized in Ohio, and that R.C. 2307.60 does not create a separate cause of action for

damages.

{¶ 70) According to Duer, hcr "complaint alleges that the Appellees' speech was

intended to produce, was likely to produce, and did produce imminent disorder, which

proximately caused the Appellants' damages to their property and emotional daniages." Duer

further argues that ttnder R.C. 2307.60(A), she can "recover * * * damages in a civil action since

they have alleged tttat they have been daniaged in person or property by the Appellees."

{¶ 711 We initially note that the allegations in Duer's complaint for this claitn are

primarily focused on the website. According to the complaint, "[flhe Defendants used words to

carry out their illegal purpose of providing information for the purposes of assisting readers of

the websitc and of the book in committing crimes, including but not litnited to the crime of

incitement to violence (R.C. 2917.01)."

iSl 72} While R.C. 2917.01 criminalizes "inciting to violence," we agree with the trial

court that Ohio does not recognize the civil tort of "incitement to imminent lawless action," and

Duer has provided no authority to the contrary. We have previously determined that R.C.

18

2307.60 is a jurisdictional statute permitting a court to grant relief to individuals injured by a

crime. Collirrs v. Nat'1 City Bank, Montgomery App. No. 19884, 2003-Ohio-6893, ¶ 46. The

statute has no application to Duer's claim. Accordingly, the trial court properly granted

Appellees' motion to dismiss this claim.

"B. 'I'he trial court should not have distnissed Appellants' elaims for invasion ofprivacy (false light) as against the Chalmer S. Staley Trust as Appellants'complaint had alleged sufficient facts to state their claims for relief under Ohio

law."

{¶ 73} The trial court determined that "an action for invasion of privacy compensates the

victiin for mental suffering, shame or humiliation. Since an estate (or a trust) is not a living

person, it cannot suffer such damages," citing Rothsteiri, at 778.

{¶ 74} Duer directs our attention to paragraph 67 in her Complaint, which provides,

"Defendants, individually, and as writers, publishers, or editors of the Weird Ohio Book and

[forgottenohio] made false statements about Plaintiff Melissa Duer, individually and in her

capacity as trustee of the Chalmer S.Staley Trust."

{¶ 75} The trial court correctly determined that a trust cannot maintain an action for

invasion of privacy. Rothstein, at 778, citing Larnhert v. Garlo (Jan.22, 1985), 19 Ohio App3d

295; Leach v. Shapiro (May 2, 1.984), 13 Ohio App.3d 393; Arrrold v. Anz. Nai'l. Red Cross

(March 14, 1994), 93 Ohio App.3d 564; Restatement of the Law 2d, Torts (1997), Section 652(t).

Accordingly, the trial court correctly dismissed Daer's claim on behalf of the Chalmer S. Staley

Trust.

"C. The trial court should not have dismissed Appellants' claims for invasion ofprivacy - unreasonable publicity or wrongful intrusion into the Appellants'

private activities as Appellants' cocnplaint had alleged sufficient facts to state

their claiins for relief under Ohio law."

19

{1176} The trial court determined that Duer is not individually mentioned in any of the

materials at issue, and the materials do not indicate that she is a descendant of "Old Man Staley."

The court fitrther noted that "exploitation or disclosure of the private affairs giving rise to the

claim nnist be those of the eomplaiuing party herself," again citing Rotlzs•tei z.

{¶ 77} 'I'he court continued, "There has been no exploitation of the private affairs of

Melissa Duer, * * * .

€9f 78} "To wrongfully intrude into the private affairs of Melissa Duer, the articles or

statements must connect her name or identity to the disclosure."

{¶ 79} Duer asserts, "Appellants have sufficiently alleged a cause of action for wrongful

intrusion, since they have alleged that Appellees have wrongfully intruded into their private

activities by publishing false stories concerning the Appellant's family history and concerning the

property owned by Appellants."

{¶ 80} We initially note, Duer's Complaint delineates this cause of action as follows:

"Invasion of Privacy (Unreasonable Publicity Given to the Other's Private Life or Appropriation

of the Plaintiffs' Name or Likeness.)" According to the claim for relief; "The Defendants

intentionally iniruded, physically or otherwise, upon the solitude or seclusion of the Plaintiffs in

their private affairs or concerns. ** * The heritage and descendency of Plaintiff Duer is a private

matter. *** The Defendants *** intentionally, and maliciously appropriated or exploited the

private affairs of [Duer]."

111811 'I'he tort of invasion of privacy is divided into four separate torts, including:

{¶ 82} "`(1) intrusion upon the plaintift's seelusioa or solithide, or his private affairs; (2)

public disolosure of embarrassing private facts about the plaintiff; (3) publicity which places the

20

plaintiff in a false light in the pubtic eye; and (4) appropriation, for the defendant's advantage, of

the plaintiff's nanre or likeness."' (citation omitted). Scroggins v. Bill Furst Florist and

Greenhouse, Inc., Montgomery App. No. 19519, 2004-Ohio-79, ¶ 33.

f9l 83} It is unclear exactly which tort Duer is asserting, in that slie claims intrusion upon

her solitude and seclusion and unreasonable publicity into her private matters, as well as

appropriation of her likeness in her complaint. However, as the trial court concluded, there is no

inention of Duer in Weird Ohio, and there is no way to infer from the stoiy about Staley Road

that Duer and "Old Man Staley" are related. For the foregoing reasons, the trial court properly

granted Appellees' motion to dismiss this claim.

"D. 'rhe trial court should not have dismissed Appellants' claims for negligentinflietion of emotional distress as Appellants' eomplaint had alleged

sufficient facts to state their claims for retief under Ohio law."

{¶ 84) According to Duer's Complaint, "Defendants' actions have placed Plaintiff

Melissa Duer and Carol M. Mumford in peril of serious physical injury by the fact that Plaintiffs

have been subjected to trespassers damaging their property, including committing arson on

Plaintiffs' property and buildings." Duer asserted that the resulting emotional distress was

reasonably foreseeable.

{,l 85) The trial court determined, Duer's "complaint misses the objective component

that tlte Plaintiff must have actually witnessed this dangerous accident or been in actual physical

peril (i.e., danger of being injured). Subjective claims do not create the cause of action."

{T 85) According to Duer, "Appellants have alleged that they have been in the zone of

danger," in reliance upon Paugh v. Hanks (1983), 6 Ohio St.3d 72.

{^ 87) "The availability of a claim for relief for negligent infliction of emotional distress

21

was first recognized in Ohio in [Paugh]. fn that case, serious emotional distress was allegedly

suffered by a parent who feared her children were in peril when autotnobiles accidently left the

road and collided into her home. The issue was whether the emotional distress the parent

allegedly sulfered was reasonably foreseeable to the drivers, when the parent suffered no physical

harm.

{¶ 88} "Cases in wliich claims for relief for negligcnt intliction of emotional distress

have been held to lie havc, like Paugh v. Hanks, involved distress suffered by a bystander who

witnessed a sudden and shocking event, such as an auto accident,that did or reasonably could

result in injru'y to other persons. We have lield that one who witnesses the negligent damaging

of his property over a period of titne arising out of the ongoing negligence of the defendant may

not recover for emotional distress experienced as a result." Poater v. RETS Tech Center,

Montgomery App. Nos. 22012, 22014, 2008-Ohio-993, ¶ 39-40.

{¶ 89} The facts set forth in Duer's Complaint, if taken as true, do not establish that she

was in a foreseeable zone of danger, but only that her property was repeatedly damaged as a

result of the negligence of the, Appellees. Accordingly, the trial court correctly granted

Appellees' motion to dismiss this claim.

{l( 90} Finally, Appellees assert that the protections of the First Amendment bar Duer's

claims. Appellees asserted the same argument in their Reply to Duer's opposition to their

motion to dismiss. The trial court did not address the constitutional issue, and having eoncluded

that the trial court properly granted Appellees' motion to disniiss the above claims on th c merits,

we need not address this argament.

{9191} 'I'here being no merit to Duer's third assignment of error, it is overruled.

22

{¶ 921 Duer's final assignment of error is as follows:

111931 "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION

FOR LEAVE TO F1LE AN AMENDED COMPLAINT, AS DISCOVERY WAS ONGOING,

THE MOTION WAS TIMELY AND WOULD NOT HAVE RESULTED IN ANY PREJUDICE

TO APPELLEES OR DELAY IN BRINGING "1'HE MA'I"1'ER 'f0 TRIAL AND SUCH A

FINDING WAS AN ABUSE OF DISCRETION."

{¶ 94) The trial court's decision overruling Duer's motion f'or leave to amend provides in

part:

{9[ 95) "No explanation has been provided as to why * * * new causes of action could

not have been discovered long ago (if they are even viable) and presented to the Court.

{Q 96} "The Plaintiffs have also alleged and attached copies of police reports indicating,

the Plaintiffs argue, `over a hundred reports of trespassing.'

{¶ 97) "The Court lias reviewed the attached pages, all of which were multi-page

readouts of each incident.

{1198} "There were 10 reports called in during 2006.

[4[199) "There were 12 reports called in during 2007.

{¶ 100} "In 2008, the same year this complaint was filed for record, the 941

complaints curiously jumped to 52

{¶ 1011 "Upon closer examination of the 911 logs, it is clear that these reports

we-re not just about trespassers on rlaintiffs' property.

[111102) "Had the Plaintiffs looked closer, they would have determined (and

hopefiilly not wasted the Court's time) that the complaints called in include claims of excessive

23

cars driving down the road; cars parked on the road; claims of deer hunters; wires down on

property; vclticle driving through yard; flve of the reports were actually sheriff departinent

generated wherein they staked an unmarked cruiser on the road between 11 p.m. and 2 a.m. to

acldress all the claims being filedwith 911 (apparently they discovered nothing). The reports

also contained claims of juveniles on bicycles on the road, farm equipinent hitting the mailbox

and even a complaint against Mr. Duer for pointing a pistol at a juvenile female driver who was

stopped on the roadway.

{11103} "The Plaintiffs' claims of over a hundred reports of trespassing is, in

contract parlance, puffing, and a waste of the Court's time."

{¶ 104) "Civ.R. 15(A) indicates that leave of court shall be `freely given' for

amendment of pleadings. °The grant or denial of leave to amend a pleading is discretionary and

will not be reversed absent an abuse of discretion. ***' Purtheirnore, while Civ.R.15 allows

for liberal ainendinent, courts may deny motions to amend when there is a showing of bad faith,

undue delay, or undue prejudice to the opposing party." (Citation omitted). Engleivood v.

Turner, 178 Ohio App.3d 179, 2008-Ohio-4637, ¶ 49.

{¶ 105) Duer filed her motion for leave to aniend on February 17, 2009, one month

before trial, and over a year after her refiling lter complaint, and 31 months atler filing the initial

complaint. Aecording to Duer, she learned, in the course of Willis' deposition, taken January

20, 2009, near the close of discovery, that Willis "holds himself out as an individual with the

ability to investigate and determine whether a location may be haunted," but Willis failed to

investigate "whether or not any o.f the properties included in the book as haunted wera in fact

haunted." Duer also learned from Willis that "he and presumably the other authors of Weird

24

Ohio were approached by Defendants Sterling Publishing, Ine., Mark Sceurman and Mark Moran

to write the book and were paid on a per section basis, with input and stories being supplied by

Defendants Sterling Publishing, Ine., Sceurinan and Moran. * * * Defendants Sterling Publishing

Inc., Soeurman and Moran knew or should have known that the Weird Ohio book would * * *

cause trespassing on the properties listed and that Defendants Willis Flenderson and Moran were

dangerous or unfit persons to author the book," In the amended complaint attached to her

motion, Duer sought to add claims of negligent hiring, supervision and retention, civil

conspiracy, respondeat superior/ agency by estoppel, negligence, and injunctive relief.

{t 106} As the trial court noted, Duer provided no explanation for the delay in

seeking to add the new causes of action. Further, Duer failed to identily any new material facts

giving rise to the new claims, and her assertion regarding the relationships between Appellees is

speculative. Duer also incorrectly asserted that the parties were still in the process of discovery

when she souglit leave to amend; the discovery cutoff of February 6`h had passed. Despite ten

months for discovery, Duer conducted only two depositions, requesting the deposition of Moran

one week before the close of discovery. Such inaction and delay casts doubt on Duer's good

faith, as Appellees assert. Finally, discovery having closed, the parties were preparing for trial,

and "the necessity of additional inotions or answers" would have prejudiced Appellees.

Schiveizer v. Riverside Methodist fZospital (1996), 108 Ohio App.3d 539, 546. Accordingly, the

trial court did not abuse its discretion in overruling Duer's tnotion for leave to amend the

complaint. Duer's fom-tb assignment of error is overruled.

{11107} The judgment of the trial coru•t is affirmed.

25

BROGAN, J. and FROELICH, J., concur.

Copies mailed to:

Jeremy M. "I'ombPhilomena M. DaneAneca L. LasleyPeter E. JonesHon. Robert J. Lindernan