[Cite as Reddy v. Plain Dealer Publishing Co.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98834

WILLIAM F. REDDY PLAINTIFF-APPELLANT

vs.

PLAIN DEALER PUBLISHING CO. DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-773256

BEFORE: McCormack, J., Keough, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: June 6, 2013 ATTORNEYS FOR APPELLANT

Mary Sotera Weston Hurd, L.L.P. The Tower at Erieview 1301 East 9th St., Suite 1901 Cleveland, OH 44114

Michael A. Dolan The Dolan Law Firm, L.L.C. 3890 Rocky River Drive, Suite 1S Cleveland, OH 44111

ATTORNEYS FOR APPELLEE

Melissa A. Degaetano Michael K. Farrell Baker & Hostetler L.L.P. PNC Center 1900 East 9th Street, Suite 3200 Cleveland, OH 44114 TIM McCORMACK, J.:

{¶1} Appellant, William F. Reddy (“Reddy”), appeals from a judgment of the

Cuyahoga County Court of Common Pleas that granted summary judgment in favor of the

Cleveland Plain Dealer Publishing Co. (“The Plain Dealer”) regarding Reddy’s claim that

The Plain Dealer committed trespass when it delivered a free publication to his residence

without his consent.

{¶2} The question to be answered in this appeal is whether delivering a free

publication to a residence, when the resident has not expressly objected to the delivery,

constitutes trespass. For the following reasons, we answer the question in the negative

and affirm the trial court.

Substantive Facts and Procedural History

{¶3} Beginning in June 2009 and for over one year, The Plain Dealer delivered a

free weekly publication called The PD Wrap-Up to Reddy’s residence by depositing the

publication in his front yard. The delivery of the free weekly publication began after

Reddy’s subscription to the newspaper ended. The free publication contains articles on

people, business, entertainment, and sports, as well as crossword puzzles, recipes,

horoscopes, and advertisements. The free publication is wrapped in a translucent plastic

bag. Prominently displayed at the first page under the heading “PD WRAP-UP” are a

local telephone number and a toll free number for the recipients to call for any delivery

concerns. {¶4} The Plain Dealer did not contact Reddy to inquire whether he wanted the

free publication; neither had Reddy contacted The Plain Dealer to express anything

including an objection to the delivery. There were no signs in Reddy’s yard prohibiting

trespassing or solicitations. The Plain Dealer stopped the delivery of the publication to

Reddy’s house once he filed the lawsuit. By Reddy’s own account, the only harm he

suffered from the delivery of the publication was the inconvenience of having to pick it

up and throw it into the garbage can.

{¶5} Reddy had previously filed a complaint in 2011 alleging trespass by The

Plain Dealer, and after conducting discovery and moving for summary judgment, Reddy

voluntarily dismissed the case. Shortly afterward, Reddy’s counsel filed a similar

complaint against The Plain Dealer.1 In January 2012, Reddy re-filed the case.2

{¶6} The Plain Dealer moved for summary judgment, which the trial court

granted. Reddy now appeals from that judgment, raising two assignments of error for

our review. The first assignment of error states: “The trial court erred in granting

appellee summary judgment when the uncontroverted facts demonstrate that appellee

committed the tort of trespass each time it entered upon appellant’s private property

without obtaining appellant’s permission.”

Counsel voluntarily dismissed that case two months after the trial court granted summary 1

judgment in favor of The Plain Dealer in the present case.

The complaint was filed as a putative class action. 2 {¶7} We review summary judgment de novo. Comer v. Risko,

,

,

, ¶ 8. Summary judgment is appropriate where it

appears that: (1) there is no genuine issue as to any 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 party against whom the motion for

summary judgment is made, who is entitled to have the evidence construed most strongly

in his favor. Harless v. Willis Day Warehousing Co., Inc.,

,

(1978); Civ.R. 56(C).

The Trespass Claim

{¶8} The common-law tort in trespass upon real property occurs when “a person,

without authority or privilege, physically invades or unlawfully enters the private

premises of another whereby damages directly ensue * * * .” Apel v. Katz,

,

(1998). This court similarly defined the tort as “(1) an

unauthorized intentional act and (2) entry upon land in the possession of another.” See

also L.A.D.S. Dev. Co. v. McCrarry, 8th Dist. No. 89816,

.

{¶9} Reddy alleges The Plain Dealer committed the tort of trespass by depositing

its publication on a residence without first obtaining the resident’s permission. The

Plain Dealer asserts that it has a privilege rooted in the First Amendment to distribute the

publication absent a command from the resident to refrain from distributing the

publication. {¶10} The trespass claim presented by Reddy is a novel one. Our research does

not disclose any case law directly on point. Both parties cite a 70-year-old decision from

the United State Supreme Court, Martin v. Struthers,

,

,

(1943), as authority in support of their position.

{¶11} In Struthers, a Jehovah’s Witness knocked on doors and rang doorbells to

distribute leaflets advertising a religious meeting. She was convicted of violating a city

ordinance that made it unlawful “for any person distributing handbills, circulars or other

advertisements to ring the door bell, sound the door knocker, or otherwise summon the

inmate or inmates of any residence to the door for the purpose of receiving” such

materials. The ordinance had been enacted to protect residents from being disturbed in

the hours of rest, and to prevent criminals from posing as canvassers. The defendant

argued that the ordinance violated her First Amendment rights.

{¶12} The Supreme Court of the United States reversed the defendant’s

conviction, holding that the municipal ordinance prohibiting any person to knock on

doors or otherwise summon to the door the occupants of a residence for the purpose of

distributing to them handbills or circulars was invalid as applied to the defendant

distributing advertisements for a religious meeting.

{¶13} Struthers differed from the present case in two ways. First, it involved the

distribution of religious materials, while the present case involves a publication

containing mostly advertisements. Second, Struthers involved an individual knocking

on doors and summoning an occupant to the door to receive a leaflet, while the present case involves the depositing of a publication in residents’ yards — a much less intrusive

method of delivery. Because of these factual differences, Struthers is not directly on

point. Nonetheless, the court’s reasoning in that case provides some guidance in our

analysis of the issue before us, that is, whether a distribution of publications to

households without prior consent constitutes trespass. The Struthers court reasoned:

Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. * * * We know of no state which, as does the Struthers ordinance in effect, makes a person a criminal trespasser if he enters the property of another for an innocent purpose without an explicit command from the owners to stay away. The National Institute of Municipal Law Officers has proposed a form of regulation to its member cities which would make it an offense for any person to ring the bell of a householder who has appropriately indicated that he is unwilling to be disturbed. This or any similar regulation leaves the decision as to whether distributers of literature may lawfully call at a home where it belongs — with the homeowner himself. A city can punish those who call at a home in defiance of the previously expressed will of the occupant * * *. In any case, the problem must be worked out by each community for itself with due respect for the constitutional rights of those desiring to distribute literature and those desiring to receive it, as well as those who choose to exclude such distributors from the home.

(Footnotes omitted and emphasis added.)

.

{¶14} The court’s reasoning makes it apparent that, regardless of the content of the

printed materials distributed, and regardless of whether it involves the more intrusive

method employed by the Jehovah’s Witness (knocking on the doors or ringing the

doorbells to summon an occupant to the door to receive the materials), or the much less

intrusive method of delivery employed by The Plain Dealer (depositing the publication in the yard), the distribution of literature enjoys First Amendment protection, in the absence

of an explicit command from the property owners to stay away.

{¶15} Reddy claims Struthers created “an affirmative First Amendment duty to

‘knock on the door or ring the doorbell’ on all persons seeking to enter private property.”

Reddy’s claim is not supported by our reading of the case. Rather, applying Struthers’s

reasoning to this case, The Plain Dealer’s distribution of The PD Wrap-up, in the absence

of a previously expressed will of the resident objecting to it, enjoys the privilege derived

from the First Amendment and is not considered by law as committing the tort of trespass.

The PD Wrap-up supplies a toll free number for residents to call if they object to its

delivery, but Reddy never voiced his objection prior to filing the lawsuit.

{¶16} As the court in Struthers reminded us, the right of freedom of speech and

press “embraces the right to distribute literature, and necessarily protects the right to

receive it.” (Citation omitted.)

. Indeed, some households may actually

enjoy the weekly delivery of the free publication and occasional coupons. To prohibit

The Plain Dealer from delivering the publication without first obtaining a consent from

each homeowner would hinder a right to receive information embraced by the First

Amendment.

{¶17} Reddy contends that The PD Wrap-Up comprises exclusively of

advertisements and, therefore, is not worthy of any First Amendment protections. First,

our own examination of a copy of the publication contained in the record shows that it is

comprised of three pages of newspaper content — primarily lifestyle articles — and a crossword puzzle, along with a Parade magazine and advertisements. It does not

consist exclusively of advertisements, as Reddy claims.

{¶18} Second, even if the publication were to comprise exclusively of advertising

materials, it has long been established that commercial speech also enjoys the protection

of the First Amendment. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer

Council, Inc.,

,

,

(1976); Linmark Assoc., Inc.

v. Willingboro,

,

,

(1977). “[S]peech does not

lose its First Amendment protection because money is spent to project it, as in a paid

advertisement of one form or another.” (Citations omitted.) Virginia State Bd. of

. Contrary to Reddy’s assertion, the mostly commercial nature of The

PD Wrap-up does not preclude the protection of the First Amendment.

{¶19} Reddy cites several cases to support his position that the First Amendment

does not confer The Plain Dealer a privilege to deliver its publication on his property

without first obtaining his consent. None of the cases cited are pertinent. In Eastwood

Mall, Inc. v. Slanco,

,

(1994), the owners of shopping

malls filed a complaint seeking injunctive relief against a protester who repeatedly

picketed and handbilled on the mall and refused to leave when asked by the mall owners.

The court held that an injunction prohibiting “picketing, patrolling, handbilling, soliciting,

or engaging in any other similar activities” on the property of a privately owned shopping

center is not an unconstitutional prior restraint on speech in violation of the free speech

guarantees accorded by the Ohio Constitution.

at syllabus. We do not see the relevance of Eastwood to this case — the conduct complained of in that case was an

individual engaging in picketing on private properties and refusing to leave after repeated

requests by the owners, which is qualitatively different from the deposition of a

publication in a yard without the homeowner’s express command to stay away.

{¶20} Similarly, Reddy’s reliance on Cincinnati v. Thompson,

,

(1st Dist. 1994), is misplaced. In that case, some anti-abortion activists

were charged with trespass after refusing to leave the premises of a medical center after

told to leave. The court found the enforcement of the trespass statute against these

defendants under the circumstances did not violate the First Amendment. Thompson,

too, is distinguishable because the defendants there refused to leave the premises after

being told to leave.

{¶21} Finally, we note that even if we do not analyze this case from the First

Amendment standpoint, there is case law indicating The Plain Dealer’s conduct does not

constitute trespass. In Conway v. Calbert,

,

(10th Dist. 1997), a distributor distributed plastic bags of advertisements inside an

apartment complex. The issue was whether such conduct constituted trespass. The

Tenth District did not address the implication of the First Amendment on the matter, but it

held, nonetheless, that such conduct did not constitute trespass where the distributor was

never put on notice that the delivery of these materials inside the apartment complex was

prohibited.

. The Tenth District explained that a property owner “may

prohibit solicitors, peddlers, or other like callers from entering, and the use of a sign erected on the premises indicating that such persons are not wanted or permitted, makes

trespassers of anyone who disregards it.”

, citing 60 American Jurisprudence

2d, 1101, Peddlers, Solicitors and Transient Dealers, Section 100, at n. 62 (1987).

{¶22} We note that there are a variety of activities (which may or may not concern

printed materials) involving an entry into private properties without a prior consent of the

property owner, for example, campaign workers delivering candidates’ literature or girl

scouts selling cookies. Consent is implied in these activities as a matter of community

custom and tradition, and they are not deemed trespasses unless there is a command or

notice to stay away. The court in Conway explained that at common law, “the

presence of a knocker or a bell on the door signified a license to attempt entry,

preventing, in the absence of notice or order to the contrary, initial entry by solicitors and

peddlers from being a trespass.”

, citing Citizens for a Better Environment v.

Park Ridge,

(7th Cir. 1975); Breard v. Alexandria,

,

,

(1951); 60 American Jurisprudence 2d, Peddlers, Solicitors

and Transient Dealers, Section 100 (1987).

{¶23} Thus, regardless of whether The Plain Dealer’s conduct in delivering a free

publication to households without first obtaining a consent is protected under the First

Amendment, such an activity falls under the class of activities where consent could be

implied from community custom and tradition, in the absence of an explicit command to

stay away. Holding The Plain Dealer liable for trespassing would turn various groups of

citizens who similarly distribute literature door to door without specific consent from the homeowners into trespassers. As the Supreme Court of United States reminded us,

“[d]oor to door distribution of circulars is essential to the poorly financed causes of little

people.” Struthers,

,

,

. Although The

Plain Dealer is a commercial enterprise, we do not see why it should be treated differently

than other distributors of literature under this well-accepted and time-honored practice.

{¶24} Based on the foregoing analysis, the trial court properly granted summary

judgment in favor of The Plain Dealer on Reddy’s trespass claim. The first assignment

of error is without merit.

Discovery

{¶25} Reddy’s second assignment of error states: “The trial court abused its

discretion and committed prejudicial error when it denied appellant’s right to conduct

discovery.”

{¶26} Discovery matters fall within the broad discretion of the trial court, and we

review a trial court’s decision in discovery matters for an abuse of discretion. Mauzy v.

Kelly Servs., Inc.,

, 592,

(1996). An abuse of

discretion is a decision that is unreasonable, arbitrary, or unconscionable, rather than a

mere error in judgment. Blakemore v. Blakemore,

,

(1983).

{¶27} The record reflects that, although discovery was not conducted in the

present case, discovery was conducted in the first case filed by Reddy and in the case

filed by his counsel where The Plain Dealer’s Vice President of Circulation, Robert Perona, was deposed. When Reddy refiled his case, he filed the transcript of Perona’s

deposition as evidence.

{¶28} On March 12, 2012, Reddy sent a Civ.R. 30(B)(5) notice to take deposition,

duces tecum, to The Plain Dealer, for a deposition to take place on April 17, 2012,

apparently seeking information regarding the newspaper’s advertising revenues, rates, and

other financial information. The next day, on March 13, 2012, the trial court granted

The Plain Dealer’s motion for leave to file a motion for summary judgment, instanter.

Two days later, Reddy filed a motion to perpetuate discovery under Civ.R. 56(F), which

permits a party to seek a continuance of summary judgment proceedings in order to

conduct further discovery. The motion stated that discovery was necessary to “obtain

facts related to the character, motive, and purpose of Defendant’s conduct/speech.” The

affidavit attached to the motion from Reddy’s counsel stated only that “I reasonably

believe that the discovery requested by [Reddy] is reasonable and necessary to allow a

proper and complete response to [The Plain Dealer’s] Motion for Summary Judgment.”

{¶29} On April 11, 2012, Reddy responded to The Plain Dealer’s motion for

summary judgment and he also filed a cross-motion for summary judgment. The next

day, the court denied Reddy’s Civ.R. 56(F) motion for further discovery on the grounds

that Reddy failed to articulate with specificity how the information sought by the

deposition regarding The Plain Dealer’s advertisement rates and other revenue

information will assist in demonstrating a genuine issue of fact pertinent to the trespass claim. The trial court subsequently granted The Plain Dealer’s motion for summary

judgment.

{¶30} Reddy claims the trial court abused its discretion in denying his right to

discovery, specifically his Civ.R. 56(F) motion to continue the summary judgment

proceedings for further discovery.

{¶31} The trial court enjoys considerable discretion in the regulation of discovery

proceedings, and we will not reverse the judgment of the trial court on a Civ.R. 56(F)

ruling absent a showing of a clear abuse of discretion. Penix v. Avon Laundry & Dry

Cleaners, 8th Dist. No. 91355,

. “The party seeking additional time

to respond to a motion for summary judgment must present sufficient reasons that would

justify the requested continuance. * * * There must be a factual basis stated and reasons

given why the party cannot present facts essential to its opposition to the motion.”

(Citations omitted.) Id. at ¶ 31. To grant a Civ.R. 56(F) motion, the court must be

convinced that there is a likelihood of discovering some such facts. Id. at ¶ 32.

{¶32} Here, Reddy vaguely alleged that the discovery was needed to identify “the

character, motive and purpose” of The Plain Dealer’s conduct. The affidavit by his

counsel, attached to the Civ.R. 56(F) motion, stated nothing more than his belief that the

discovery is “reasonable and necessary.”

{¶33} The Plain Dealer’s “motive and intent” in distributing its free publication is

not pertinent to this claim of trespass, because, as we explain above, even if the PD

Wrap-Up were to comprise only of advertisements, commercial speech also enjoys First Amendment protection, absent an explicit command from a resident objecting to its

distribution. It is undisputed that Reddy had not voiced an objection to the delivery of

the publication prior to his filing of the lawsuit. Therefore, Reddy failed to show further

discovery would demonstrate or negate a fact relevant to an issue in the motion for

summary judgment. The trial court did not abuse its discretion in not allowing further

discovery. The second assignment of error lacks merit.

Attorney Fees

{¶34} Although the trial court granted summary judgment in favor of The Plain

Dealer, it denied The Plain Dealer’s request for attorney fees pursuant to R.C. 2323.51

and Civ.R. 11. The Plain Dealer filed a cross-appeal claiming the trial court erred in

denying attorney fees without a hearing.

{¶35} R.C. 2323.51 and Civ.R. 11 allow an award of attorney fees as a sanction for

frivolous conduct. Pursuant to R.C. 2323.51, a party adversely affected by frivolous

conduct may file a motion for an award of attorney fees. R.C. 2323.51 defines

“frivolous conduct,” in pertinent part, as:

(a) Conduct of a * * * party to a civil action * * * that satisfies any of the following:

(i) It obviously serves merely to harass or maliciously injure another party to the civil action * * * or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation. (ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law. {¶36} Civ.R. 11 states that the signature of an attorney constitutes a certificate that,

to the best of the attorney’s knowledge, there is good ground to support a filing and the

filing is not interposed for delay.

{¶37} An appellate court reviews a trial court’s decision to impose sanctions

pursuant to Civ.R. 11 and R.C. 2323.51 for an abuse of discretion. In re: Carothers, 8th

Dist. No. 96369,

; Mitchell v. W. Res. Agency, 8th Dist. No.

86708,

. Under either rule, an award of attorney fees is within the

discretion of the trial court. Bittner v. Tri-County Toyota, Inc.,

,

(1991). A reviewing court will not reverse the trial court’s decision on

whether to award sanctions absent an abuse of discretion. Ron Scheiderer & Assoc. v.

London,

,

,

. The trial court is in the

best position to appraise the conduct of the parties, and we must defer to the trial court’s

ruling on a motion for sanctions. First Place Bank v. Stamper, 8th Dist. No. 80259,

, ¶ 17.

{¶38} The Plain Dealer alleges Reddy’s claim of trespass was frivolous and Reddy

engaged in further frivolous conduct by harassing The Plain Dealer and deliberately and

unnecessarily driving up the costs of the litigation.

{¶39} A claim is “frivolous” if “[i]t is not warranted under existing law, cannot be

supported by a good faith argument for an extension, modification, or reversal of existing

law, or cannot be supported by a good faith argument for the establishment of new law.”

R.C. 2323.51(A)(2)(a)(ii). Although both the trial court and this court determine that Reddy’s trespass claim lacks merit, the mere fact that the claims were unsuccessful is not

enough to warrant sanctions. Halliwell v. Bruner, 8th Dist. No. 77487,

, *23-24 (Dec. 14, 2000).

{¶40} The Plain Dealer also asserts that Reddy’s repeated request of discovery,

including the filing of the Civ.R. 56(F) motion, seeking The Plain Dealer’s financial and

revenue information, which is irrelevant to his trespass claim, rises to the level of

frivolous and sanctionable conduct.

{¶41} We are mindful of the chilling effect applying the sanction remedy can have

upon zealous advocacy. Carr v. Riddle,

,

(8th Dist. 2000). As the trial judge presided over this matter throughout the extensive

litigation, we defer to the trial judge for the determination that attorney fees are not

warranted in this case. Furthermore, neither R.C. 2323.51 nor Civ.R. 11 require a trial

court to conduct a hearing before denying a motion for attorney fees. Donaldson v.

Todd,

,

,

(10th Dist.); First

Place Bank v. Stamper, 8th Dist. No. 80259,

. The Plain Dealer’s

assignment of error in its cross-appeal is without merit.

{¶42} The judgment of the Cuyahoga County Court of Common Pleas is affirmed. It is ordered that appellee recover of said appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ TIM McCORMACK, JUDGE

KATHLEEN ANN KEOUGH, P.J., and EILEEN T. GALLAGHER, J., CONCUR