Grizinski v. American Express Financial Advisors Inc.

• Decision Date: 03 May 2010
• Docket Number: No. CA2009-05-062.,CA2009-05-062.
• Citation: 932 N.E.2d 381,187 Ohio App.3d 393
• Parties: GRIZINSKI, Appellant, v. AMERICAN EXPRESS FINANCIAL ADVISORS, INC., Appellees.
• Court: Ohio Court of Appeals

187 Ohio App.3d 393

932 N.E.2d 381

GRIZINSKI, Appellant,

v.AMERICAN EXPRESS FINANCIAL ADVISORS, INC., Appellees.

No. CA2009-05-062.

Court of Appeals of Ohio,Twelfth District, Warren County.

Decided May 3, 2010.

Michael J. Davis, for appellant.

Michael W. DeWitt, Dublin, for appellee.

HENDRICKSON, Judge.

{¶ 1} Plaintiff-appellant, William V. Grizinski, appeals the decision of the Warren County Court of Common Pleas granting summary judgment to defendant-appellee, American Express Financial Advisors', Inc. (“American”). We affirm the decision of the trial court.

{¶ 2} Grizinski is a broker, and one company he represents is the National Health Insurance Company (“NHIC”). David Parker, one of Grizinski's clients, established an annuity contract with NHIC that replaced an annuity Parker already held. Parker was also a client of American and eventually moved funds from his NHIC annuity to investments held with American. At some point, Michael Bryan, an employee of American who had a close personal and professional relationship with Parker, became involved in the annuity change.

{¶ 3} After reviewing the annuities Parker held with Grizinski, Bryan composed a letter on Parker's behalf regarding certain aspects of the annuity-replacement contract. Specifically, the letter indicated that Parker was surprised to learn that he would be charged a 15 percent surrender charge, that he had not received full disclosure regarding the fees, and that no replacement form was filed at the time Parker replaced his annuity contract. Parker signed the letter, and Bryan sent it to NHIC and also sent a copy to the Ohio Department of Insurance (“ODI”). According to Parker and Bryan, they sent the letter in hopes of gaining an economic advantage, namely waiver of the surrender fees to which NHIC was entitled. The purpose of sending a copy of the letter to ODI was to gain leverage to force NHIC to waive the surrender charges.

{¶ 4} After receiving the letter, both NHIC and ODI conducted an investigation into Parker's complaint, specific to whether Grizinski's actions violated insurance regulations or whether he was subject to discipline for the handling of Parker's annuity contract. After the investigation, NHIC determined that Grizinski was not obligated to file a replacement form and that he acted in good faith and made full disclosure regarding the surrender fees. Similarly, ODI performed an investigation and concluded that Grizinski had not violated any insurance laws or regulations and had not acted improperly in his dealings with Parker.

{¶ 5} Grizinski filed suit against Parker in Scioto County Court of Common Pleas and eventually settled the case out of court. The matter between Grizinski, Bryan, and American was set for arbitration under National Association of Securities Dealers (“NASD”) guidelines. In addition to his claim against Bryan and American for tortious interference with a business relationship and defamation/libel, Grizinski also claimed that American had violated Ohio's Deceptive Trade Practices Act.

{¶ 6} The causes were heard by a panel of arbitrators, who unanimously found American and Bryan ¹ liable, joint and severally, for $25,000 in compensatory damages. The panel also imposed $50,000 in punitive damages against American for its conduct. The panel also ordered American to take whatever steps were necessary to expunge any records of the disciplinary inquiries against Grizinski from ODI, NASD, and the Securities and Exchange Commission. The panel gave American until September 30, 2003, to effectuate the expungement orders and further ordered American to pay $100 per day for every day past September 30, 2003, that expungement did not occur.

{¶ 7} After the deadline passed, Grizinski claimed that he was able to access information on ODI's website pertaining to the disciplinary investigation it performed on him in response to Parker's letter. Grizinski filed a complaint against Bryan and American in the Warren County Court of Common Pleas for the enforcement of the panel's expungement orders and for monetary damages pursuant to the panel's award of $100 for each day past September 30, 2003, that the records were not expunged. While Bryan was eventually dismissed from the suit, American filed a motion for summary judgment, and the trial court granted it, finding that there were no genuine issues of material fact. It is from the trial court's decision to grant summary judgment that Grizinski now appeals, raising a single assignment of error.

{¶ 8} “The trial [sic] committed reversible error as a matter of fact and as a matter of law in granting summary judgment in favor of the appellee/defendant.”

{¶ 9} In his assignment of error, Grizinski claims that the trial court erred in finding that no genuine issues of material fact remain to be litigated. This argument lacks merit.

{¶ 10} Before reviewing the trial court's decision to grant summary judgment, we first address Grizinski's claim that the trial court improperly considered an unsworn letter in determining that American was entitled to summary judgment. The letter, attached to American's motion for summary judgment, was written by an ODI representative in response to American's request for information regarding Grizinski's disciplinary action.

{¶ 11} According to Civ.R. 56(C), proper summary judgment materials include pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact. Otherwise, materials not referenced in Civ.R. 56(C) may be properly considered if they are incorporated by reference in a properly framed affidavit. Spagnola v. Spagnola, Mahoning App. No. 07 MA 178, 2008-Ohio-3087, 2008 WL 2486429.

{¶ 12} While the unsworn letter does not fall within any of these categories and was not otherwise incorporated by reference in a proper affidavit, we nonetheless find that the trial court did not err in considering the letter. Instead, “although a court is not required to consider improper summary judgment evidence, it may consider such evidence if neither party objects.” Spagnola, 2008-Ohio-3087, 2008 WL 2486429 at ¶ 39.

{¶ 13} In lieu of a memorandum in opposition to American's motion for summary judgment, Grizinski filed an affidavit in which he argued that summary judgment was inappropriate. However, in his affidavit, Grizinski failed to object to American's use of the unsworn letter and instead referenced the letter in support of his own claims. As Grizinski failed to object to the letter's use, the trial court did not err in considering the improper summary judgment evidence.

{¶ 14} This court's review of a trial court's ruling on a summary judgment motion is de novo. Broadnax v. Greene Credit Serv. (1997), 118 Ohio App.3d 881, 887, 694 N.E.2d 167. Civ.R. 56 sets forth the summary judgment standard and requires that there be no genuine issues of material fact to be litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion, that conclusion being adverse to the nonmoving party. Slowey v. Midland Acres, Inc., Fayette App. No. CA2007-08-030, 2008-Ohio-3077, 2008 WL 2486565, ¶ 8. The moving party has the burden of demonstrating that there is no genuine issue of material fact. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46.

{¶ 15} The nonmoving party “may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing the existence of a genuine triable issue.” Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385, 667 N.E.2d 1197. A dispute of fact can be considered “material” if it affects the outcome of the litigation. Myers v. Jamar Ents. (Dec. 10, 2001), Clermont App. No. CA2001-06-056, 2001 WL 1567352, at *2. A dispute of fact can be considered “genuine” if it is supported by substantial evidence that exceeds the allegations in the complaint. Id.

{¶ 16} Thus, in order to avoid summary judgment in American's favor, Grizinski was required to set forth specific facts to demonstrate that American failed to follow the arbitration panel's...