Lillback v. Metro. Life Ins. Co., No. 14085

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtFREDERICK N. YOUNG; GRADY, P.J., and WOLFF
Citation640 N.E.2d 250,94 Ohio App.3d 100
Parties, 3 A.D. Cases 1542, 4 A.D.D. 878, 5 NDLR P 112 LILLBACK, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellee.
Docket NumberNo. 14085
Decision Date30 March 1994

Page 100

94 Ohio App.3d 100
640 N.E.2d 250, 3 A.D. Cases 1542, 4 A.D.D. 878, 5 NDLR P 112
LILLBACK, Appellant,
v.
METROPOLITAN LIFE INSURANCE COMPANY, Appellee.
No. 14085.
Court of Appeals of Ohio, Second District, Montgomery County.
Decided March 30, 1994.

[640 N.E.2d 251]

Page 102

Larry G. Lillback, pro se.

Freund, Freeze & Arnold and Francis S. McDaniel, Dayton, for appellee.

FREDERICK N. YOUNG, Judge.

Larry G. Lillback appeals from the trial court's grant of summary judgment to Metropolitan Life Insurance on both of Lillback's claims. In the first branch of his complaint, Lillback alleged that he relied on Metropolitan's representations to him that he could draft wills and trusts for clients as well as sell them policies of life insurance and investments. He claimed that these representations persuaded him to continue working for Metropolitan when he otherwise would have been engaged in a lucrative law practice. He further complained that Metropolitan's refusal to issue policies to clients for whom Lillback had drafted legal documents and Metropolitan's order to him to stop drafting legal documents for Metropolitan clients deprived him of bonuses he should have earned for [640 N.E.2d 252] selling the insurance policies. In his second claim, Lillback complained that no reasonable accommodation was made for him when he suffered a lumbosacral sprain, and, as a result, he was not able to meet his sales quota and was dismissed. He alleged that Metropolitan's conduct violated the Americans with Disabilities Act and Ohio's R.C. 4112.02.

The facts of this case are discussed in greater detail as they are relevant to the assignments of error below.

I

Lillback's fifth assignment of error brings up a threshold issue which we will address first:

"The trial court erred in following its trial order of discovery and the considering and granting of the defendant's motion for summary judgment."

The trial court, in its February 11, 1993 pretrial order, set a deadline for discovery at September 17, 1993. At the same time, it set August 1, 1993 as the deadline for either party to file motions for summary judgment. A trial by jury was scheduled for the week of October 18, 1993. Metropolitan made its motion for summary judgment May 4, 1993, which the court granted on June 11.

Lillback's awkwardly stated fifth assignment seems to allege error in the granting of summary judgment before the time set aside for discovery had

Page 103

expired. Lillback complains that it was not only unreasonable for the court to have required motions for summary judgment to be filed before discovery had to be completed, but also that the court should never have entertained Metropolitan's May motion, as it was brought some four months before the discovery deadline--before Lillback had succeeded in deposing some out-of-state witnesses--and was therefore grossly premature.

In its pretrial order, the court explained that the early cut-off date for motions for summary judgment was not set to discourage settlement or other pretrial disposition of the case, but to ensure that such a disposition could be made early enough to permit hearings for other matters to be moved up in the court's calendar. As such, the summary judgment deadline represents a perfectly reasonable attempt by the court to efficiently control its docket.

Obviously, the deadline for discovery was set without reference to the deadline for filing summary judgment motions, and the fact that the summary judgment deadline came first may have presented a greater possibility that a motion for summary judgment would be brought and heard before both parties had completed their discovery. The court's calendar arrangement did not dictate such a result, however, and the placement of one date before the other, in and of itself, was not prejudicial error.

Parties who find themselves in the position of having to respond to a motion for summary judgment before adequate discovery has been completed must seek their remedy through Civ.R. 56(F):

"Should it appear from the affidavits of a party opposing the motion for summary judgment that he cannot for sufficient reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just."

Civ.R. 56(F) is invoked when a party opposing a motion for summary judgment files a motion, supported by affidavit, that explains that he cannot adequately oppose the motion because he cannot demonstrate sufficient facts to create a material issue, and that the court should therefore refuse to entertain the motion, or should grant him a continuance to permit him to marshal the necessary Civ.R. 56(C) evidence to justify his opposition to the motion. See State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14, 577 N.E.2d 352, 353-354; and Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 86-87, 523 N.E.2d 902, 910-911.

In this case, Lillback failed to invoke Civ.R. 56(F) for any of the relief available in it. Not only did he fail to produce affidavits showing how a continuance would assist him in opposing Metropolitan's motion for summary[640 N.E.2d 253] judgment, but he made

Page 104

no motion for a continuance at all. The only reference he made to inadequate discovery was in the concluding paragraph of his Resistance to Defendant's Motion for Summary Judgment, in which he asked the court to deny Metropolitan's motion as a sort of sanction for the "malicious actions of the defendant's attorney in an effort to hinder the discovery process." This statement, even if it had been supported by affidavit, would have been insufficient to invoke any of the remedies provided in the rule.

Accordingly, we find that this issue has not been preserved for review. Stegawski v. Cleveland Anesthesia Group, Inc., supra, 37 Ohio App.3d at 87, 523 N.E.2d at 911. Lillback's fifth assignment of error is overruled.

II

Lillback's first four assignments of error are:

"I. The trial court erred in granting the defendant's motion for summary judgment in that there were facts which needed to be resolved by the trier of fact on both Counts I and II of the complaint;

"II. The trial court erred in granting the defendant's motion for summary judgment in that there were genuine issues as to material facts on both Counts I and II of the complaint;

"III. The trial court erred in granting the defendant's motion for summary judgment in that the defendant was not entitled to the judgment as a matter of law on both Counts I and II of the complaint;

"IV. The trial court erred in granting the defendant's motion for summary judgment based upon the fact that reasonable minds could not have come to but one conclusion, and that the conclusion could not have been adverse to the plaintiff on both Counts I and II of the complaint[.]"

His sixth assignment of error is:

"VI. The trial court erred in its application of The Americans with Disabilities Act to the facts in this case."

Each assignment of error contends that summary judgment was improvidently granted. In the interests of clarity and judicial economy, we will consider first whether summary judgment was proper for Lillback's fraudulent inducement or promissory estoppel claim, and next whether it should have been granted on his ADA and Ohio civil rights claims. The facts relevant to each claim are laid out below, and for each claim, we have adopted Lillback's most favorable construction of the facts.

Page 105

A

Lillback is an attorney who was suspended from the practice of law in 1989 for misappropriating money. See Lake Cty. Bar Assn. v. Lillback (1989), 41 Ohio St.3d 13, 535 N.E.2d 300. During his suspension, he sought other employment. He responded to an advertisement placed by Metropolitan Life Insurance Company in The Dayton Daily News, seeking applicants to fill vacant positions in their management training program.

He subsequently spoke to a recruiting agent, Karen Brett, about the possibility of becoming a Metropolitan insurance agent. He had prospects, if he sold well, of advancing to a managerial position. In the meantime, he would earn bonuses and commissions based on the volume of sales he made. His initial base salary was also calculated based on the sales he was expected to make, and would be adjusted up or down each quarter to correspond to his sales record for the preceding quarter.

In January 1991, near the completion of the hiring process, Lillback discussed the parameters of his new position with Kevin Lattea. They discussed how Lillback's eventual reinstatement to the practice of law might affect his employment with Metropolitan. It was suggested that he might prepare legal documents such as wills and trusts "as a service for the people" who were prospective buyers of Metropolitan insurance policies. Lillback was ultimately hired as an insurance agent.

Lillback was reinstated to the practice of law April 18, 1991. Lake Cty. Bar Assn. v. Lillback (1991), 60 Ohio St.3d 608, 573 N.E.2d 592. He alleged in his complaint that [640 N.E.2d 254] he chose to continue working for Metropolitan after his reinstatement in the belief that he could engage in estate planning for Metropolitan clients and draft legal documents for them, and that had he not held this belief, he would have quit his employment with Metropolitan and entered private practice again.

Shortly after his reinstatement, Lillback spoke at a couple of seminars, apparently training seminars for Metropolitan account representatives, in which he was introduced to those assembled as an expert in the area of estate planning. He states that he was held out, and spoke freely of himself, as someone empowered to "work with" potential customers of life insurance products. Specifically, he alleged that he was authorized to prepare the...

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29 practice notes
  • LexisNexis v. Moreau-Davila, No. 27319
    • United States
    • United States Court of Appeals (Ohio)
    • July 28, 2017
    ...before adequate discovery has been completed must seek their remedy through Civ. R. 56(F) [.]" Lillback v. Metro. Life Ins. Co. , 94 Ohio App.3d 100, 103, 640 N.E.2d 250 (2d Dist. 1994). Accord 95 N.E.3d 685 Cornett v. State Farm Mut. Ins. Co. , 2d Dist. Montgomery No. 19103, 2002 WL 148321......
  • Cole v. Staff Temps, No. 95-1421
    • United States
    • United States State Supreme Court of Iowa
    • October 23, 1996
    ...to suppose that we do not have concurrent jurisdiction with federal courts to construe it. Lillback v. Metropolitan Life Ins. Co., 94 Ohio App.3d 100, 640 N.E.2d 250, 258 Disability discrimination claims tried to the court are reviewed for errors of law. Iowa R.App.P. 4; Courtney v. America......
  • Krouse v. American Sterilizer Co., Civ. A. No. 93-313 Erie.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 25, 1994
    ...follows that the state courts have concurrent jurisdiction over ADA claims as well"). See also Lilliback v. Metropolitan Life Ins. Co., 94 Ohio App.3d 100, 113-115, 640 N.E.2d 250 (Mont. Cty. March 30, 1994) (adjudicating ADA claim and holding that ADA does not create a civil right to promo......
  • In re Grand Jury Subpoenas, 2005 Ohio 4607 (OH 8/24/2005), No. 04CA2966.
    • United States
    • United States State Supreme Court of Ohio
    • August 24, 2005
    ...was created turns largely on the reasonable belief of the prospective client."); Lillback v. Metropolitan Life Ins. Co. (1994), 94 Ohio App.3d 100, 108, 640 N.E.2d 250; David v. Scharzwald, Robiner, Wolk & Rock Co., L.P.A. (1992), 79 Ohio App.3d 786, 798, 607 N.E.2d 1173. If an attorney-cli......
  • Request a trial to view additional results
29 cases
  • LexisNexis v. Moreau-Davila, No. 27319
    • United States
    • United States Court of Appeals (Ohio)
    • July 28, 2017
    ...before adequate discovery has been completed must seek their remedy through Civ. R. 56(F) [.]" Lillback v. Metro. Life Ins. Co. , 94 Ohio App.3d 100, 103, 640 N.E.2d 250 (2d Dist. 1994). Accord 95 N.E.3d 685 Cornett v. State Farm Mut. Ins. Co. , 2d Dist. Montgomery No. 19103, 2002 WL 148321......
  • Cole v. Staff Temps, No. 95-1421
    • United States
    • United States State Supreme Court of Iowa
    • October 23, 1996
    ...to suppose that we do not have concurrent jurisdiction with federal courts to construe it. Lillback v. Metropolitan Life Ins. Co., 94 Ohio App.3d 100, 640 N.E.2d 250, 258 Disability discrimination claims tried to the court are reviewed for errors of law. Iowa R.App.P. 4; Courtney v. America......
  • Krouse v. American Sterilizer Co., Civ. A. No. 93-313 Erie.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 25, 1994
    ...follows that the state courts have concurrent jurisdiction over ADA claims as well"). See also Lilliback v. Metropolitan Life Ins. Co., 94 Ohio App.3d 100, 113-115, 640 N.E.2d 250 (Mont. Cty. March 30, 1994) (adjudicating ADA claim and holding that ADA does not create a civil right to promo......
  • In re Grand Jury Subpoenas, 2005 Ohio 4607 (OH 8/24/2005), No. 04CA2966.
    • United States
    • United States State Supreme Court of Ohio
    • August 24, 2005
    ...was created turns largely on the reasonable belief of the prospective client."); Lillback v. Metropolitan Life Ins. Co. (1994), 94 Ohio App.3d 100, 108, 640 N.E.2d 250; David v. Scharzwald, Robiner, Wolk & Rock Co., L.P.A. (1992), 79 Ohio App.3d 786, 798, 607 N.E.2d 1173. If an attorney-cli......
  • Request a trial to view additional results

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