Davila v. Simpson

[Cite as Davila v. Simpson, 2018-Ohio-946.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
EDWIN DAVILA : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff - Appellant : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
JENNIFER SIMPSON : Case No. 2017CA00166
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No. 2016
CV 01691
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 12, 2018
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ED DAVILA, pro se J. MICHAEL GATIEN
333 Erie Street, South #325 2371 Chestnut Hill St., N.W.
Massillon, Ohio 44648 North Canton, Ohio 44720
Stark County, Case No. 2017CA00166 2
Baldwin, J.
{¶1} Appellant, Edwin Davila, appeals the decision of the Stark County Court of
Common Pleas granting summary judgment in favor of appellee, Jennifer Simpson.
STATEMENT OF FACTS AND THE CASE
{¶2} Appellant alleges that appellee intentionally interfered with his employment
by Avanti Corporation, leading to his termination on December 13, 2015.
{¶3} Appellant was hired by Avanti Corporation in 2001. The principal of the
company, Gaetano Cecchini, approached appellant and invited him to work for Avanti,
though the recitation of facts in appellant’s complaint reveals that many of the duties he
assumed were personal services for Mr. Cecchini. Appellant states he “agreed to work
for Cecchini and began employment with Avanti in that spring of 2001.” (Amended
Complaint, paragraph 12). The complaint describes an employee handbook that would
govern the “relationship between the employment (sic) between the plaintiff and Avanti
during the term of the employment” (Amended Complaint, paragraph 13), but it also states
that his duties would include “responsibilities which may be assigned to him on an ad hoc
basis by Cecchini, individually, or through his companies. (Amended Complaint,
paragraph 15). Finally, the complaint alleges that appellant was “also involved with
assisting Cecchini with resolving his improper relationships with certain female
employees.” (Amended Complaint, paragraph 16).
{¶4} Appellant contends that during settlement negotiations of a contested
divorce, Appellee requested that Mr. Cecchini terminate appellant’s employment with
Avanti and all of Mr. Cecchini’s companies. Appellant argues that his termination was the
direct result of that request and he offered documents in support of the contention that
Stark County, Case No. 2017CA00166 3
appellee made that demand. He described the documents as two letters from an attorney
representing the appellee in the divorce and a responsive letter from Mr. Cecchini, all
dated 2007. Appellant also offered a memorandum he drafted after hearing a telephone
conversation purportedly between appellee and Mr. Cecchini. The letters are not
authenticated by their purported authors and the letter attributed to Mr. Cecchini is not
signed. Appellee offered nothing to authenticate the identity of the party who spoke with
Mr. Cecchini during the phone call.
{¶5} Appellant also submitted his affidavit containing descriptions of two
telephone conversations he witnessed between Mr. Cecchini and appellee, one dated
August 2015 and one dated November 2015, in which he contends that appellee insisted
that appellant’s termination was a critical part of any settlement of the pending complaint
for divorce. Appellant recalls that Mr. Cecchini did not agree with appellee, but told her
they would talk about it later. The identity of the other person on the phone during the
calls was not authenticated pursuant to Evid.R. 901(B)(6).
{¶6} Mr. Cecchini terminated appellant’s employment on December 13, 2015
due to “the distressed financial condition of Avanti Corporation and Cecchini Enterprises.”
(Amended Complaint, paragraph 26).
{¶7} Appellant filed a complaint on April 25, 2016 in the Cuyahoga County Court
of Common Pleas and named Mr. Cecchini and Avanti Corporation as defendants. The
defendants moved for a change of venue to Stark County on May 27, 2016. After the
exchange of several pleadings, the court granted the motion on July 15, 2016.
{¶8} The case was scheduled for a telephonic pretrial conference on September
6, 2016. At the conference the trial court set deadlines and included within its order the
Stark County, Case No. 2017CA00166 4
following language: “plaintiff to strike extraneous statements from complaint within 30
days.” No explanation is contained within the record regarding the trial court’s intent.
Plaintiff filed an amended complaint on October 5, 2016 which included the appellee and
the allegations that are pertinent to this appeal. On November 1, 2016 appellant
dismissed all claims against Mr. Cecchini, Avanti Corporation and Cicchini, Inc., leaving
appellee the only defendant.
{¶9} Appellee filed an answer and counterclaim on January 17, 2017 and
appellant filed his reply on February 2, 2017. On April 18, 2017, appellant filed a motion
to disqualify appellee’s trial counsel, claiming that appellant planned to call him as a
witness. Appellee opposed that motion and filed a motion for leave to file an amended
answer. The motion requesting leave to file an amended answer was granted. Prior to the
judge issuing a ruling on the motion to disqualify, new counsel entered an appearance on
behalf of appellee making the motion to disqualify moot.
{¶10} Appellee filed her amended answer on May 12, 2017 and scheduled the
deposition of appellant. Appellant’s deposition was completed on June 1, 2017 and filed
with the court on July 10, 2017.
{¶11} On July 10, 2017, appellee filed a motion requesting a protective order
regarding the sealed final decree of divorce and agreed judgment entry executed by
appellee and Mr. Cecchini. Appellee requested that the court review the documents in
camera to determine whether an agreement to terminate the appellant appeared in those
documents. Appellee also requested that the documents remain sealed and that the
appellant not be permitted to review them.
Stark County, Case No. 2017CA00166 5
{¶12} On July 17, 2017, appellant filed his opposition to the appellee’s motion, but
appellant did not serve appellee with any discovery requests seeking a copy of the decree
or an opportunity to review it. Appellant asserted that the decree was irrelevant, but did
not object to the use of the decree in support of the motion for summary judgment and
did not file a motion to strike the decree from the record.
{¶13} On August 9, 2017, the trial court found that “plaintiff has not requested the
divorce settlement agreement in discovery.” The Court further concluded “the court has
conducted a review of the document and find (sic) the same shall not be disclosed to
Plaintiff. Accordingly the motion for protective order is granted.” Appellant has not
appealed this order.
{¶14} Both parties filed motions for summary judgment on July 10, 2017,
supported with affidavits, memoranda opposing the motions and replies. The trial court
issued a ruling on August 9, 2017 granting appellee’s motion for summary judgment and
finding the appellant’s motion moot.
{¶15} The parties also exchanged several memoranda regarding motions in
limine involving the appellant’s criminal history as well as a motion to strike any references
to that history from the record and to strike comments made by appellee’s counsel. These
motions remained unresolved as they became moot when the motion for summary
judgment was granted.
{¶16} Appellant filed this appeal and lists five assignments of error:
{¶17} I. THE TRIAL COURT ERRED BECAUSE UNDER CIV. R 56(C) SIMPSON
FAILED TO FURNISH EVIDENCE DEMONSTRATING ENTITLEMENT TO SUMMARY
Stark County, Case No. 2017CA00166 6
DISPOSITION OF THIS CASE AND SIMPSON FAILED TO DEMONSTRATE
ENTITLEMENT AS A MATTER OF LAW.
1. THE TRIAL COURT ERRED BECAUSE SIMPSON FAILED TO
FURNISH PROPER DOCUMENTARY EVIDENCE SUPPORTING HER
CLAIM FOR SUMMARY JUDGMENT.
2. THE TRIAL COURT ERRED BECAUSE SIMPSON FAILED TO
DEMONSTRATE ENTITLEMENT TO SUMMARY JUDGMENT AS A
MATTER OF LAW.
{¶18} II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF SIMPSON WHERE SIMPSON ADMITTED IN HER AMENDED ANSWER
THAT SHE INTERFERED WITH EMPLOYMENT WITH DAVILA'S CORPORATE
EMPLOYER.
{¶19} III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF SIMPSON WHERE SIMPSON FAILED TO PLEAD THE AFFIRMATIVE
DEFENSE OF PRIVILEGE TO INTERFERE WITH THE EMPLOYMENT OF DAVILA
AFTER SHE ADMITTED INTERFERING WITH DAVILA'S EMPLOYMENT
{¶20} IV. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
IN FAVOR OF SIMPSON BECAUSE OHIO LAW HAS NOT RECOGNIZE (SIC) A
PRIVILEGE FOR AN ESTRANGED SPOUSE OR FORMER SPOUSE WHICH WOULD
ALLOW SIMPSON'S ADMITTED INTERFERENCE WITH DAVILA'S EMPLOYMENT
WITH HIS CORPORATE EMPLOYER.
{¶21} V. THE TRIAL COURT ERRED IN SUGGESTING IN DICTA DAVILA'S
CORPORATE EMPLOYER HAD THE RIGHT TO TERMINATE HIM AT ITS
Stark County, Case No. 2017CA00166 7
DISCRETION REGARDLESS OF SIMPSON'S INTERFERENCE AND THEREFORE
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF
SIMPSON.
1. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
AND SUGGESTING IN DICTA AN AT-WILL EMPLOYMENT EXISTED
BECAUSE DAVILA'S EMPLOYMENT WAS NOT AT-WILL UNDER THE
DOCTRINE OF PROMISSORY ESTOPPEL AND NOT AT-WILL AS A
RESULT OF AN EMPLOYEE HANDBOOK.
2. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
AND SUGGESTING IN DICTA AN AT-WILL EMPLOYMENT EXISTED
WHEN OHIO LAW PROVIDES A CLAIM OF TORTIOUS INTERFERENCE
IS NOT BARRED BY A DISPUTED ASSERTION OF AT-WILL
EMPLOYMENT.
Standard of Review
{¶22} 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). Civ.R. 56(C)
provides, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence in the pending case, 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
Stark County, Case No. 2017CA00166 8
matter of law. * * * A summary judgment shall not be rendered unless it
appears from such evidence or stipulation and only therefrom, 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, such party being entitled to have the evidence or stipulation
construed most strongly in his favor.
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 nonmoving
party has no evidence to prove its case. The moving party must specifically
point to some evidence *759 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 material fact for trial. Vahila v.
Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), citing Dresher v.
Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).
Lanzer v. Louisville, 5th Dist. No. 2015 CA 00170, 2016-Ohio-8071, ¶ 31-32.
Stark County, Case No. 2017CA00166 9
Tortious Interference with Employment
{¶23} The court in Slyman v. Shipman, Dixon & Livingston, Co., L.P.A., 2nd Dist.
Miami No. 2008-CA-35, 2009-Ohio-4126, ¶ 11 outlined the elements necessary to
establish tortious interference with an employment relationship:
Tortious interference with an employment relationship “occurs when
one party to the relationship is induced to terminate the relationship by the
malicious acts of a third person who is not a party to the relationship at
issue.” Tessmer v. Nationwide Life Ins. Co. (Sept. 30, 1999), Franklin App.
No. 98AP-1278, 1999 WL 771013 at 6, citing Condon v. Body, Vickers &
Daniels (1994), 99 Ohio App.3d 12, 22, 649 N.E.2d 1259. Accordingly, to
establish such a claim, a plaintiff must demonstrate: “1) the existence of an
employment relationship between plaintiff and the employer; 2) the
defendant was aware of this relationship; 3) the defendant intentionally
interfered with this relationship; and 4) the plaintiff was injured as a
proximate result of the defendant's acts.” (Citations omitted).
{¶24} We have confirmed the need for a malicious or wanton act that results in a
termination as vital elements of such a claim: “The general rule in Ohio is that an
employee earning a living has a right to pursue employment free from unwarranted
interference by third persons, and that one who maliciously or wantonly procures the
employee's discharge is liable in damages. Frankow v. Thorn EMI, Inc., 5th Dist. Richland
No. 92-CA-83, 1993 WL 135701, *4, (Sep. 29, 1993).
Stark County, Case No. 2017CA00166 10
ANALYSIS
{¶25} The breadth of appellant’s first assignment of error belies the argument
contained within his brief. The assignment suggests a broad argument regarding the
requirements for granting summary judgment and supporting documents, but the
argument is much more narrow. Rather than a comprehensive argument regarding the
evidence offered in support of appellee’s motion for summary judgment, appellant
focuses only upon the trial court’s consideration of the appellee’s divorce decree.
{¶26} Appellant contends that the trial court erred in considering the sealed
divorce decree and cites to the requirements of Civ.R. 56. However, appellant did not
present this argument to the trial court. The appellant opposed appellee’s motion seeking
a protective order and in camera inspection of the decree and further argued that the
decree would have no effect on his claims, but he did not file a motion to strike the decree,
nor did he register any objection to its consideration in the context of a motion for
summary judgment. “Failure to object to the court's consideration of the evidence
submitted in support of a motion for summary judgment constitutes waiver of any alleged
error in the consideration of the evidence. A trial court may consider evidence other than
the evidence specified in Civ.R.56 (C) where no objection has been raised.” Assett
Acceptance LLC v. Davis, 5th Dist. Fairfield No. 2004CA00054, 2004-Ohio-6967, ¶ 45,
citations omitted. Appellant’s failure to object to the consideration of the final decree of
divorce or agreed judgment entry or move to strike them waived any objection and the
trial court was free to give the decree whatever weight it deemed appropriate.
{¶27} Assuming, arguendo, the agreed judgment entry and the final decree of
divorce were stricken from the record, appellee’s affidavit provides the same information
Stark County, Case No. 2017CA00166 11
when she states that “[t]he terms of my Final Settlement Agreement did not include
anything regarding the plaintiff’s employment” and “I did not undertake any activity that
actually caused the termination of the plaintiff’s employment and have no knowledge of
the circumstances or reasons as to the same.” (Appellee’s affidavit attached to her Motion
for Summary Judgment as Exhibit A). Any error in the consideration of the final decree
and agreed entry would, therefore, be harmless.
{¶28} Appellant’s second argument regarding this assignment is, similar to the
first, much narrower than the assignment would lead this court to believe. A more accurate
description of the alleged error is contained within the text of the argument where
appellant states “Thus, the trial court erred because Rule 56 does not permit a trial court
to use its reluctance in the absence of a demonstration by Simpson of evidentiary or legal
support.” (Appellant’s Amended Brief, page 10) Appellant is referring to the trial court’s
statement, on page 3 of its order where, in the context of describing the appellee’s alleged
conduct as privileged the trial court states “[t]he facts of this case are unusual and, not
surprisingly, there are no cases on point. This court is reluctant to impose liability on an
employer’s estranged spouse for the employer’s decision to terminate his employee.”
Appellant misinterprets this statement as the basis for the trial court’s decision when,
reviewed in context of the entire opinion, it is only relevant to the court’s determination
that the appellee’s alleged conduct was privileged. Because we view the trial court’s
comment regarding its reluctance relates only to the analysis of privilege, we cannot
agree that the trial court erred.
{¶29} Appellant’s second assignment of error is overruled.
Stark County, Case No. 2017CA00166 12
{¶30} Appellant’s third assignment of error is based upon his contention that
appellee admitted tortious interference with his employment and proximate cause in her
amended answer. He concludes that, as a result, the only issue remaining to be decided
is the harm he has suffered. We disagree with his interpretation of the pleadings.
{¶31} Appellant refers us to the following allegations in his amended complaint:
28. During the course of their divorce proceedings between Cecchini and
Simpson on at least three separate occasions, Simpson demanded that she
would agree to settle the divorce, if, among other demands, Cecchini
agreed to terminate in every way possible the employment or any other
relationship amongst Cecchini, Avanti Corporation, and Cicchini
Enterprises and Plaintiff.
29. Cecchini agreed to the request to terminate his relationship with Plaintiff
as demanded by Simpson but rejected some of the other settlement
provisions.
Amended Complaint, page 5.
{¶32} Appellant contends that the appellee’s response is an admission of tortious
interference and causal connection:
5. Defendant admits, subject to the Affirmative Defenses as are set forth
herein, the allegations contained in paragraphs 28 and 29 but, denies that
Plaintiff’s employment was terminated for the allegations claimed.
Amended Answer, page 1.
{¶33} Overlooked by appellant, but important in this context, are two affirmative
defenses asserted by appellee:
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11. Assuming arguendo, without an admission of the same, that Plaintiffs
claims have any validity, his damages were caused by the acts or omissions
of other individuals or entitles over which Defendant had no control.
12. Plaintiffs’ claims should fail for a failure to prove the Direct and
Proximate Cause of his damages.
Amended Answer, page 1.
{¶34} We disagree with appellant’s characterization of the allegations and the
response, as well as his conclusions regarding their effect. At best, the allegations and
the response establish that, at some time, appellee requested appellant’s termination
during negotiation of a divorce action and, at some time, Mr. Cecchini agreed with that
request, but there is no admission Mr. Cecchini acted on appellee’s request. The
allegations and the answer cannot reasonably be construed as an admission that
appellee sought and procured appellant’s termination or that there is a causal
connection between appellee’s request and any damages suffered by appellant.
{¶35} Appellant third assignment of error is overruled.
{¶36} Because appellant’s third and fourth assignments of error address the issue
of privilege, we consider them simultaneously.
{¶37} These assignments highlight appellant’s mistaken belief that privilege is an
affirmative defense in the context of a complaint for intentional interference with an
employment relationship. The burden of proving lack of privilege rests with appellant.
*** Ohio law places the burden on the plaintiff to demonstrate improper
conduct in order to prevail on a claim of tortious interference with a contract
instead of requiring a defendant to assert and prove privilege in defense of
Stark County, Case No. 2017CA00166 14
such a claim. Columbia Dev. Corp. v. Krohn, 1st Dist. No. C1300842, 2014-
Ohio-5607, 2014 WL 7277755, ¶ 25 (“Ohio law places the burden of proving
a lack of privilege or justification upon the plaintiff.”).
Long v. Mt. Carmel Health Sys., 10th Dist. Franklin No. 16AP-511, 2017-Ohio-5522, ¶ 27.
{¶38} “*** the law in this state imposes the burden of proving lack of privilege or
justification upon the plaintiff.” Doyle v. Fairfield Machine Co., 120 Ohio App.3d 192, 217,
697 N.E.2d 667(11th Dist.1997), (citation omitted).
{¶39} The trial court’s recognition that that there is no precedent on point is not a
bar to the court’s consideration of the possibility that the appellee’s actions were
privileged. Nevertheless, it is clear that it was the appellant’s burden to establish that the
actions taken by appellee were not privileged and appellant failed to address this issue
before the trial court. We have reviewed the record and concluded the appellant
presented no argument or evidence to support a conclusion appellee’s actions were not
privileged. Because appellant did not make this argument before the trial court, we decline
to consider it at this juncture. Shrock Prefab, L.L.C. v. Steelrite Sys. USA, Inc., 5th Dist.
Holmes No. 15 CA 20, 2016-Ohio-3410, ¶ 33.
{¶40} Appellant’s third and fourth assignments of error are therefore overruled.
{¶41} Appellant’s fifth assignment of error is an incomplete statement of the trial
court’s order and, most importantly, the assignment contains language which supports
our overruling it.
{¶42} The trial court’s ruling contains the following sentences: “Cecchini was
permitted to terminate plaintiff at his discretion, for any or no reason at all. Moreover,
there is no indication that plaintiff’s termination was predicated upon unlawful grounds.”
Stark County, Case No. 2017CA00166 15
The trial court did not simply conclude that appellant was an at-will employee subject to
be terminated at any time. Nor did the trial court hold that an at-wlll employee cannot
pursue a claim for tortious interference with employment. The trial court did hold that
regardless of the appellee’s employment characterization, there was nothing in the record
to establish that his termination was based upon unlawful grounds. The appellant’s
attempt to interpret the trial court’s findings to support his assignment of error is not
persuasive.
{¶43} Appellant’s reference to this portion of the court’s opinion as “dicta” provides
a second basis for our overruling the assignment of error. As dicta, that comment by the
trial court is not considered necessary to the decision in the case.
Stated differently, dicta or dictum is an observation or statement in an
opinion by the writing judge—***—which is unnecessary to resolution of the
issues in the case ***.” Black's Law Dictionary 1102 (8th Ed.2004) (“a
judicial comment made while delivering a judicial opinion, but one that is
unnecessary to the decision in the case and therefore not precedential.”);
see also Duck v. Cantoni, 4th Dist. No. 11CA20, 2012–Ohio–351, ¶ 25.
Peters v. Tipton, 7th Dist. Harrison No. 13 HA 10, 2015-Ohio-3307, ¶ 6.
{¶44} Consequently, if we accept the appellant’s characterization of the trial
court’s observation as dicta, that comment does not state the holding of the trial court and
is not subject to reversal. Assuming, arguendo, that the statement is not dicta, we would
find that the trial court concluded that regardless of whether appellant was an at-will or
contract employee, there was nothing in the record to establish that his termination was
the result of tortious interference with the appellant’s employment.
Stark County, Case No. 2017CA00166 16
{¶45} For those reasons, appellant’s fifth Assignment of error is overruled.
{¶46} We also find the grant of summary judgment was correct for a reason not
addressed by the trial court. Myers v. Evans Products Co., 5th Dist. Fairfield No. 25-CA-
84, 1984 WL 7610, *1 (Dec. 14, 1984). The record lacks any evidence of a causal connect
between the appellee’s alleged acts and the termination of the appellant’s employment.
Appellee has denied that she took any action that resulted in appellant’s termination and
stated that his termination was not part of her divorce decree. (Appellee’s affidavit
attached to her motion for summary judgment) Appellant contends appellee has admitted
the connection in her amended answer, but as we have addressed, appellant’s
interpretation of the appellee’s answer cannot be reasonably construed to be an
admission that supports a causal connection. In fact, the appellee’s answer expressly
denies causation. Appellant offered 3 letters, contending those letters demonstrate a
causal connection, but the letters have not been authenticated by their authors and the
relevant statements are hearsay which we decline to consider.
{¶47} Appellant has also offered descriptions of two phone calls, but the calls have
not been authenticated pursuant to the requirements of the Evid.R. 901(B)(6) and we will
not consider them. Consequently, the record lacks any reliable evidence regarding a
causal connection between the alleged acts of appellee and appellant’s termination.
{¶48} Appellant acknowledges his obligation to establish causation on page one
of his Motion for Summary Judgment: “Davila maintains after summary judgment is
entered the sole issues remaining for determination by the jury would be that of causation
and damages.” (Motion for summary judgment of plaintiff, page 1). No Civ.R. 56 quality
evidence was provided by appellant after he filed the motion for summary judgment that
Stark County, Case No. 2017CA00166 17
would obviate the need for proof of causation. Further, appellant admitted other causes
for his termination. He acknowledged that Mr. Cecchini terminated employees over the
age of 45, that he was over the age of 45 on the date he was terminated and that he
asserted a claim with the Ohio Civil Rights Commission on those grounds. (Davila
deposition, page 4, lines 11-12; page 40, lines 4-21). Appellant admitted that Mr. Cecchini
stated that appellant’s alleged involvement in distributing campaign literature was “one of
the factors in terminating his relationship with Plaintiff.” (Amended Complaint, paragraph
107). The appellant’s acknowledgment of his obligation to prove proximate cause
between the appellee’s action and his termination, the lack of supportive evidence for that
element of his claim and his admission of other causes for his termination support
summary judgment in favor of appellee on this issue.
{¶49} We find, therefore, that in addition to the reasons set forth by the trial court,
summary judgment is appropriate because, in construing all of the appropriate
documentation in a light most favorable to appellant, there are no genuine issues of
material fact with regard to proximate cause and appellee is entitled to judgment as a
matter of law as a result of the lack of any evidence establishing a causal connection
between the alleged acts of the appellee and the termination of appellant.
Stark County, Case No. 2017CA00166 18
{¶50} The decision of the Stark County Court of Common Pleas is affirmed. Costs
assessed to appellant.
By: Baldwin, J.
Delaney, P.J. and
Earle Wise, J. concur.