COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70917 JACK SHARWELL : ACCELERATED DOCKET : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CLEVELAND PLAIN DEALER, ET AL. : : Defendants-appellees : PER CURIAM : DATE OF ANNOUNCEMENT : OF DECISION : MARCH 13, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 280143 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: Jack Sharwell Louis A. Colombo, Esq. P.O. Box 22419 Michael K. Farrell, Esq. Beachwood, Ohio 44122 Baker & Hostetler 3200 National City Center 1900 East 9th Street Cleveland, Ohio 44114-3485 -2- PER CURIAM: Plaintiff-appellant Jack Sharwell appeals from the trial court's order granting summary judgment. Appellant filed this action against defendants-appellees the Cleveland Plain Dealer and Alex Machaskee (herein referred to in the singular as appellee), after he had arranged to place an advertisement in the newspaper. The advertisement, for a sound amplifier called the "Pocket Spy", was scheduled to run on October 19, October 21, and October 23, 1994. In his amended complaint, Sharwell alleged appellee contacted him on October 20, 1994, to inform him that the product he was attempting to sell required FDA approval, and therefore, that his advertisement was illegal. Sharwell claimed appellee then cancelled the advertisements that were scheduled to appear on October 21 and October 23. Apparently contradicting these assertions, appellant also alleged appellee intentionally "buried" his advertisements in the "Art" section on October 21 and in the "Perspective" section on October 23. Appellant also alleged appellee contacted U.S. Customs and the State of Ohio Hearing Aid Dealers and Fitters Licensing Board to harass him. Appellant sought lost profits he claimed he suffered due to appellee's placement of his advertisements. Following appellee's successful motion for summary judgment on appellant's claims, appellant asserts on appeal the trial court erred, arguing there were many factual disputes which should have precluded an entry of summary judgment. This court disagrees. -3- In the within action, appellee submitted evidence which demonstrated appellant could not support the allegations he made in his amended complaint. Appellee attached to its motion copies of the advertisements which it ran for appellant on the relevant dates. Appellee also submitted the following evidence in the trial court: 1) the deposition transcript of a board member of the State of Ohio Hearing Aid Dealers and Fitters Licensing Board, who acknowledged that he was the one who saw the advertisement, called to determine whether or not appellant was a licensed hearing aid fitter, faxed a complaint to the State of Ohio Hearing Aid Dealers and Fitters Licensing Board, and further stated he had no contact regarding the advertisement with appellee; and 2) the affidavit of appellee's credit manager, who stated that appellee Machaskee had no involvement with either the sale, creation, or publication of the advertisement at issue. In contrast, the record reveals that appellant failed to produce evidence sufficient to indicate the existence of an issue of material fact regarding any of his allegations. See Wing v. Anchor Media, Ltd. of Texas (1991) 59 Ohio St.3d 108, 111, citing Celotex v. Catrett (1986) 477 U.S. 317; Dresher v. Burt (1996) 75 1 Ohio St.3d 280, 293. Affirmed. 1 Appellant, in his "New Brief" on appeal, relies on an affidavit he attaches which was dated July 1, 1996. However, the order granting summary judgment by the trial court was entered June 18, 1996. Thus, this court cannot properly consider the July 1, 1996 affidavit. See Lamar v. Marbury (1982) 69 Ohio St.2d 274, 277. -4- It is ordered that appellee recover of appellant his 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 Cuyahoga County 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. JAMES M. PORTER, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE KENNETH A. ROCCO, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .