[Cite as Coshocton Tribune Media v. Good Fortune Advertising, L.L.C., 2013-Ohio-2710.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
COSHOCTON TRIBUNE MEDIA, A : JUDGES: DIVISION OF GANNETT SATELLITE : INFORMATION NETWORK, INC : : Hon. W. Scott Gwin, P.J. Plaintiff - Appellant : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : -vs- : : GOOD FORTUNE ADVERTISING, LLC : Case No. 2012CA0019 DBA THE COSHOCTON COUNTY : BEACON : : Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Case No. 2012CI0117
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: June 26, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
RICHARD D. PANZA STEVEN J. SHROCK WILLIAM F. KOLIS, JR. Critchfield, Critchfield & Johnston, Ltd. RACHELLE KUZNICKI ZIDAR 138 East Jackson Street Wickens, Herzer, Panza, Cook & Batista Co. Millersburg, OH 44654 35765 Chester Road Avon, OH 44011-1262 Coshocton County, Case No. 2012CA0019 2
Baldwin, J.
{¶1} Plaintiff-appellant Coshocton Tribune Media, a Division of Gannett
Satellite Information Network, Inc., appeals from the October 11, 2012 Judgment Entry
of the Coshocton County Court of Common Pleas granting the Motion for Summary
Judgment filed by defendant-appellee Good Fortune Advertising, LLC dba The
Coshocton County Beacon.
STATEMENT OF THE FACTS AND CASE
{¶2} The Tribune is a newspaper of general circulation that has been published
at least once a week every week continuously since 1909. The Tribune is owned and
operated by appellant and, in order to produce revenue, publishes legal notices.
{¶3} The Beacon, which is owned and operated by appellee, is a weekly
newspaper. Prior to October 14, 2009, The Beacon was not published weekly. Since
October 14, 2009, The Beacon has been published weekly except for the last weeks of
December of 2009, 2010 and 2011. In early 2012, The Beacon began publishing legal
notices. The Beacon published all 52 weeks in 2012 and stated in the record below that
it intended to continue to do so.
{¶4} On March 19, 2012, appellant filed a complaint against appellee seeking a
declaratory judgment and injunctive relief. Appellant, in its complaint, sought a
declaration that The Beacon was not a” publication of general circulation” as authorized
and defined by R.C. 7.11 and 7.12 and injunctive relief enjoining appellee from
publishing legal notices in The Beacon until such time as The Beacon complied with the
statutory definition of newspaper of general circulation. Appellant also sought costs,
expenses and attorney’s fees. On the same date, appellant filed a Motion for Temporary Coshocton County, Case No. 2012CA0019 3
Restraining Order, Preliminary and Permanent Injunction. A Stipulated Order relating to
injunctive relief was filed on March 28, 2012.
{¶5} Appellee filed an answer to the complaint on May 18, 2012.
{¶6} Thereafter, on July 12, 2012, appellant filed a Motion for Summary
Judgment. Appellee filed a memorandum in opposition to the same and a Motion for
Summary Judgment on August 22, 2012.
{¶7} Pursuant to a Judgment Entry filed on October 11, 2012, the trial court
granted appellee’s Motion for Summary Judgment. The trial court, in its Judgment Entry,
found that The Beacon has been “regularly issued at least once a week” since October
14, 2009 and has been published continuously since May 1, 2008. The trial court
denied appellant’s Motion for Summary Judgment.
{¶8} Appellant now raises the following assignments of error on appeal:
{¶9} THE TRIAL COURT ERRED IN DETERMINING THAT THE
COSHOCTON COUNTY BEACON HAS BEEN “REGULARLY ISSUED AT LEAST
ONCE A WEEK” SINCE OCTOBER 14, 2009, PURSUANT TO R.C. 7.12(A).
{¶10} THE TRIAL COURT ERRED IN DETERMINING THAT THE
COSHOCTON COUNTY BEACON HAS “BEEN PUBLISHED CONTINUOUSLY”
SINCE MAY 1, 2008, PURSUANT TO R.C. 7.12(A)(3).
{¶11} ALTERNATIVELY, THE TRIAL COURT ERRED IN NOT FINDING R.C.
7.12 AMBIGUOUS AND THEREAFTER CONSIDERING RULES OF STATUTORY
CONSTRUCTION. Coshocton County, Case No. 2012CA0019 4
SUMMARY JUDGMENT
{¶12} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As
such, we must refer to Civ.R. 56 which provides, in pertinent part: “ * * *Summary
judgment shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely 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 summary judgment shall not be rendered unless it appears from such
evidence or stipulation ..., that reasonable minds can come to but one conclusion and
that conclusion is adverse to the party against whom the motion for summary judgment
is made, that party being entitled to have the evidence or stipulation construed most
strongly in the party's favor.* * * ”
{¶13} Pursuant to the above rule, a trial court may not enter a summary
judgment if it appears a material fact is genuinely disputed. The party moving for
summary judgment, bears the initial burden of informing the trial court of the basis for its
motion and identifying those portions of the record that demonstrate the absence of a
genuine issue of material fact. The moving party may not make a conclusory assertion
that the non-moving party has no evidence to prove its case. The moving party must
specifically point to some evidence which demonstrates the non-moving party cannot
support its claim. If the moving party satisfies this requirement, the burden shifts to the
non-moving party to set forth specific facts demonstrating there is a genuine issue of Coshocton County, Case No. 2012CA0019 5
material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997–Ohio–259, 674
N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996–Ohio–107, 662 N.E.2d
264.
{¶14} It is pursuant to this standard that we review appellant’s assignments of
error.
I, II, III
{¶15} Appellant, in its three assignments of error, argues that the trial court erred
in granting appellee’s Motion for Summary Judgment while denying appellant’s motion.
Appellant specifically contends that the trial court erred in finding that The Beacon met
the requirements set forth in R.C. 7.12 and was a “newspaper of general circulation.”
Appellant also argues, alternatively, that the trial court erred in not finding R.C. 7.12
ambiguous.
{¶16} R.C. 7.12 states, in relevant part, as follows: “A) Whenever a state agency
or a political subdivision of the state is required by law to make any legal publication in a
newspaper, the newspaper shall be a newspaper of general circulation. As used in the
Revised Code, ‘newspaper’ or ‘newspaper of general circulation,’… , is a publication
bearing a title or name that is regularly issued at least once a week, and that meets all
of the following requirements:
{¶17} “(1) It is printed in the English language using standard printing methods,
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[Cite as Coshocton Tribune Media v. Good Fortune Advertising, L.L.C., 2013-Ohio-2710.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
COSHOCTON TRIBUNE MEDIA, A : JUDGES: DIVISION OF GANNETT SATELLITE : INFORMATION NETWORK, INC : : Hon. W. Scott Gwin, P.J. Plaintiff - Appellant : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : -vs- : : GOOD FORTUNE ADVERTISING, LLC : Case No. 2012CA0019 DBA THE COSHOCTON COUNTY : BEACON : : Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Case No. 2012CI0117
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: June 26, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
RICHARD D. PANZA STEVEN J. SHROCK WILLIAM F. KOLIS, JR. Critchfield, Critchfield & Johnston, Ltd. RACHELLE KUZNICKI ZIDAR 138 East Jackson Street Wickens, Herzer, Panza, Cook & Batista Co. Millersburg, OH 44654 35765 Chester Road Avon, OH 44011-1262 Coshocton County, Case No. 2012CA0019 2
Baldwin, J.
{¶1} Plaintiff-appellant Coshocton Tribune Media, a Division of Gannett
Satellite Information Network, Inc., appeals from the October 11, 2012 Judgment Entry
of the Coshocton County Court of Common Pleas granting the Motion for Summary
Judgment filed by defendant-appellee Good Fortune Advertising, LLC dba The
Coshocton County Beacon.
STATEMENT OF THE FACTS AND CASE
{¶2} The Tribune is a newspaper of general circulation that has been published
at least once a week every week continuously since 1909. The Tribune is owned and
operated by appellant and, in order to produce revenue, publishes legal notices.
{¶3} The Beacon, which is owned and operated by appellee, is a weekly
newspaper. Prior to October 14, 2009, The Beacon was not published weekly. Since
October 14, 2009, The Beacon has been published weekly except for the last weeks of
December of 2009, 2010 and 2011. In early 2012, The Beacon began publishing legal
notices. The Beacon published all 52 weeks in 2012 and stated in the record below that
it intended to continue to do so.
{¶4} On March 19, 2012, appellant filed a complaint against appellee seeking a
declaratory judgment and injunctive relief. Appellant, in its complaint, sought a
declaration that The Beacon was not a” publication of general circulation” as authorized
and defined by R.C. 7.11 and 7.12 and injunctive relief enjoining appellee from
publishing legal notices in The Beacon until such time as The Beacon complied with the
statutory definition of newspaper of general circulation. Appellant also sought costs,
expenses and attorney’s fees. On the same date, appellant filed a Motion for Temporary Coshocton County, Case No. 2012CA0019 3
Restraining Order, Preliminary and Permanent Injunction. A Stipulated Order relating to
injunctive relief was filed on March 28, 2012.
{¶5} Appellee filed an answer to the complaint on May 18, 2012.
{¶6} Thereafter, on July 12, 2012, appellant filed a Motion for Summary
Judgment. Appellee filed a memorandum in opposition to the same and a Motion for
Summary Judgment on August 22, 2012.
{¶7} Pursuant to a Judgment Entry filed on October 11, 2012, the trial court
granted appellee’s Motion for Summary Judgment. The trial court, in its Judgment Entry,
found that The Beacon has been “regularly issued at least once a week” since October
14, 2009 and has been published continuously since May 1, 2008. The trial court
denied appellant’s Motion for Summary Judgment.
{¶8} Appellant now raises the following assignments of error on appeal:
{¶9} THE TRIAL COURT ERRED IN DETERMINING THAT THE
COSHOCTON COUNTY BEACON HAS BEEN “REGULARLY ISSUED AT LEAST
ONCE A WEEK” SINCE OCTOBER 14, 2009, PURSUANT TO R.C. 7.12(A).
{¶10} THE TRIAL COURT ERRED IN DETERMINING THAT THE
COSHOCTON COUNTY BEACON HAS “BEEN PUBLISHED CONTINUOUSLY”
SINCE MAY 1, 2008, PURSUANT TO R.C. 7.12(A)(3).
{¶11} ALTERNATIVELY, THE TRIAL COURT ERRED IN NOT FINDING R.C.
7.12 AMBIGUOUS AND THEREAFTER CONSIDERING RULES OF STATUTORY
CONSTRUCTION. Coshocton County, Case No. 2012CA0019 4
SUMMARY JUDGMENT
{¶12} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As
such, we must refer to Civ.R. 56 which provides, in pertinent part: “ * * *Summary
judgment shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely 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 summary judgment shall not be rendered unless it appears from such
evidence or stipulation ..., that reasonable minds can come to but one conclusion and
that conclusion is adverse to the party against whom the motion for summary judgment
is made, that party being entitled to have the evidence or stipulation construed most
strongly in the party's favor.* * * ”
{¶13} Pursuant to the above rule, a trial court may not enter a summary
judgment if it appears a material fact is genuinely disputed. The party moving for
summary judgment, bears the initial burden of informing the trial court of the basis for its
motion and identifying those portions of the record that demonstrate the absence of a
genuine issue of material fact. The moving party may not make a conclusory assertion
that the non-moving party has no evidence to prove its case. The moving party must
specifically point to some evidence which demonstrates the non-moving party cannot
support its claim. If the moving party satisfies this requirement, the burden shifts to the
non-moving party to set forth specific facts demonstrating there is a genuine issue of Coshocton County, Case No. 2012CA0019 5
material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997–Ohio–259, 674
N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996–Ohio–107, 662 N.E.2d
264.
{¶14} It is pursuant to this standard that we review appellant’s assignments of
error.
I, II, III
{¶15} Appellant, in its three assignments of error, argues that the trial court erred
in granting appellee’s Motion for Summary Judgment while denying appellant’s motion.
Appellant specifically contends that the trial court erred in finding that The Beacon met
the requirements set forth in R.C. 7.12 and was a “newspaper of general circulation.”
Appellant also argues, alternatively, that the trial court erred in not finding R.C. 7.12
ambiguous.
{¶16} R.C. 7.12 states, in relevant part, as follows: “A) Whenever a state agency
or a political subdivision of the state is required by law to make any legal publication in a
newspaper, the newspaper shall be a newspaper of general circulation. As used in the
Revised Code, ‘newspaper’ or ‘newspaper of general circulation,’… , is a publication
bearing a title or name that is regularly issued at least once a week, and that meets all
of the following requirements:
{¶17} “(1) It is printed in the English language using standard printing methods,
being not less than eight pages in the broadsheet format or sixteen pages in the tabloid
format.
{¶18} “(2) It contains at least twenty-five per cent editorial content, which
includes, but is not limited to, local news, political information, and local sports. Coshocton County, Case No. 2012CA0019 6
{¶19} “(3) It has been published continuously for at least three years
immediately preceding legal publication by the state agency or political subdivision.
{¶20} “(4) The publication has the ability to add subscribers to its distribution list.
{¶21} “(5) The publication is circulated generally by United States mail or carrier
delivery in the political subdivision responsible for legal publication or in the state, if
legal publication is made by a state agency, by proof of the filing of a United States
postal service “Statement of Ownership, Management, and Circulation” (PS form 3526)
with the local postmaster, or by proof of an independent audit of the publication
performed, within the twelve months immediately preceding legal publication.”
(Emphasis added).
{¶22} In Record Publishing Co. v. Kainrad, 49 Ohio St.3d 296, 551 N.E.2d 1286
(1990), the Court held in paragraph 3 of the syllabus that: “To be a ‘newspaper of
general circulation,’ a publication must meet all the requirements of R.C. 7.12, including
the requirement that the publication be of a type to which the general public resorts for
news of passing events.” Thus, The Beacon must have been regularly issued at least
once a week and been published continuously for at least three years preceding legal
publication to qualify as a “newspaper of general circulation” under R.C. 7.12.
{¶23} At issue in the case sub judice is the meaning of the phrase “regularly
issued at least once a week” as used in R.C. 7.12. Appellant maintains that such phrase
requires that a publication be issued 52 consecutive weeks continuously for at least
three years to qualify as a newspaper of general circulation and that, since The Beacon
was only issued for 51 weeks in 2009, 2010 and 2011, it does not qualify as a
newspaper of general circulation. Coshocton County, Case No. 2012CA0019 7
{¶24} Generally when construing a statute, “a court's paramount concern is the
legislative intent.” State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 584, 651
N.E.2d 995 (1995). In doing so, the court must first look to the plain language of the
statute itself to determine the legislative intent. Burrows v. Indus. Comm., 78 Ohio St.3d
78, 81, 1997-Ohio-310, 676 N.E.2d 519. If language used in a statute is clear and
unambiguous, the statute must be applied as written and it is not appropriate to engage
in further interpretation. Id. “A court should give effect to the words actually employed in
a statute, and should not delete words used, or insert words not used, in the guise of
interpreting the statute.” State v. Taniguchi, 74 Ohio St.3d 154, 156, 195-Ohio-163, 656
N.E.2d 1286, citing State v. Waddell, 71 Ohio St .3d 630, 631, 1995-Ohio-31, 646
N.E.2d 821.
{¶25} We find that the trial court erred in its interpretation of R.C. 7.12. The
statute clearly and unambiguously requires that a publication be regularly issued at
least once a week. As noted by appellant, the trial court “essentially ignored the phrase
‘at least once a week’ in favor of its own, more lenient language.” The statute does not
require that a publication be “regularly issued” on a “weekly basis”. Rather, the statute
requires a publication to be “regularly issued at least once a week.” While the trial court
cited cases from other jurisdictions in support of its decision, we note that the statutes in
such cases do not contain language similar to that contained in R.C. 7.12. Moreover,
our reading is consistent with statutes, and rules, that require legal publication for a
specified consecutive number of weeks. See, for example, 5721.18 (Foreclosure
proceedings on lien of state), which requires that notice of foreclosure be published
once a week for three consecutive weeks in a newspaper of general circulation in the Coshocton County, Case No. 2012CA0019 8
county. If R.C. 7.12 was interpreted in such a manner as appellee suggests, then, at
times, it would be impossible to comply with the requirements in R.C. 5721.18
{¶26} Based on the foregoing, we find that the trial court erred in finding that The
Beacon has been “regularly issued at least once a week” since October 14, 2009. As is
stated above, it is undisputed that The Beacon was not published the last weeks of
December of 2009, 2010 and 2011. The trial court, therefore, erred in finding that The
Beacon was a “newspaper of general circulation” under R.C. 7.12 since all of the
requirements set forth in R.C. 7.12 have not been met.
{¶27} Appellant’s first assignment of error is, therefore, sustained. Based on our
disposition of appellant’s first assignment of error, the remaining assignments of error
are moot. Coshocton County, Case No. 2012CA0019 9
{¶28} Accordingly, the judgment of the Coshocton County Court of Common
Pleas is reversed and this matter is remanded for further proceedings.
By: Baldwin, J.
Gwin, P.J. and
Hoffman, J. concur.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. JOHN W. WISE
CRB/dr [Cite as Coshocton Tribune Media v. Good Fortune Advertising, L.L.C., 2013-Ohio-2710.]
IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
COSHOCTON TRIBUNE MEDIA, A : DIVISON OF GANNETT SATELLITE : INFORMATION NETWORK, INC. : : Plaintiff -Appellant : : -vs- : JUDGMENT ENTRY : GOOD FORTUNE ADVERTISING, LLC : DBA THE COSHOCTON COUNTY : BEACON : : Defendant - Appellee : CASE NO. 2012CA0019
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Coshocton County, Ohio is reversed and
this matter is remanded for further proceedings. Costs assessed to appellee.