McPherson v. Goodyear Tire & Ruber Co., 2003 Ohio 7190 (Ohio App. 12/31/2003)
| Decision Date | 31 December 2003 |
| Docket Number | No. 21499.,21499. |
| Citation | 2003 Ohio 7190 |
| Court | Ohio Court of Appeals |
| Parties | Dale E. McPherson Appellant v. Goodyear Tire & Ruber Co. Appellee. |
Appeal from judgment entered in the court of Common Pleas County of Summit, Ohio, Case No. CV 1999 06 2249.
Nancy Grim, Attorney at Law, 237 East Main Street, Kent, Ohio 44240-2526, for Appellant.
Sallie Conley Lux, Attorney at Law, 500 First National Tower, Akron, Ohio 44308, for Appellee.
DECISION AND JOURNAL ENTRY
{¶1} Appellant, Dale McPherson, appeals from the judgment of the Summit County Court of Common Pleas that denied his motion for a continuance pursuant to Civ.R. 56(F), and that granted the motion for summary judgment and the motion to strike evidence of Appellee, Goodyear Tire & Rubber Company ("Goodyear"). We affirm.
{¶2} On June 9, 1999, Mr. McPherson filed a complaint against Goodyear, alleging discrimination, wrongful discharge, and infliction of emotional distress. Mr. McPherson requested Goodyear to produce various documents. Subsequently, Goodyear moved for a protective order. The trial court denied Goodyear's motion for a protective order, and instructed Goodyear to produce the documents outlined in Mr. McPherson's request.
{¶3} Following the trial court's denial of Goodyear's motion, Goodyear withheld some of the documents, claiming privilege. Mr. McPherson moved to compel Goodyear to produce the withheld documents. Goodyear countered by moving to strike certain exhibits and transcripts. On May 5, 2001, the trial court granted Mr. McPherson's motion. Goodyear timely appealed to this court, and, on October 17, 2001, this court affirmed the trial court's decision. McPherson v. Goodyear Tire & Rubber Co. (Oct. 17, 2001), 9th Dist. No. 20579.
{¶4} Thereafter, Goodyear moved for summary judgment and moved to strike the evidence of Mr. McPherson. Mr. McPherson countered and moved for a continuance pursuant to Civ.R. 56(F). The trial court denied Mr. McPherson's motion for a continuance, and it granted Goodyear's motion for summary judgment and its motion to strike evidence. It is from this judgment that Mr. McPherson timely appeals, and raises four assignments of error for review. As assignments of error two, three, and four concern similar issues of law, we will address them together.
"The court erred in granting [Goodyear's] motion to strike evidence and denying [Mr. McPherson's] Rule 56(f) motion for continuance to permit limited discovery."
{¶5} In his first assignment of error, Mr. McPherson alleges that the trial court erroneously granted Goodyear's motion to strike evidence on the basis that the evidence constituted hearsay and/or was not properly authenticated. Specifically, the evidence that Goodyear sought to be stricken was that evidence which Mr. McPherson submitted with his motion in opposition to Goodyear's motion for summary judgment. Mr. McPherson also alleges that the trial court erred when it denied his motion for a continuance pursuant to Civ.R. 56(F). We disagree with Mr. McPherson's allegations.
{¶6} We begin our review concentrating on Mr. McPherson's first allegation, specifically, the trial court's decision to grant Goodyear's motion to strike evidence.
{¶7} A trial court may only consider evidence properly submitted with a motion for summary judgment, if the evidence is admissible at trial. See, generally, Brady-Fray v. Toledo Edison Co., 6th Dist. No. L-02-1260, 2003-Ohio-3422, at ¶30, citing Hall v. Fairmont Homes, Inc. (1995), 105 Ohio App.3d 424, 436. Generally, the trial court retains the discretion to admit or exclude evidence. State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus; State v. Ditzler (Mar. 28, 2001), 9th Dist. No. 00CA007604, citing State v. Maurer (1984), 15 Ohio St.3d 239, 265. As such, an appellate court will not disturb such a decision regarding the admission or exclusion of evidence absent an abuse of discretion that has materially prejudiced the appellant. Sage, 31 Ohio St.3d at 182; Ditzler, supra; see, also, State v. Ali (Sept. 9, 1998), 9th Dist. No. 18841. An abuse of discretion connotes more than an error of judgment, and instead demonstrates "perversity of will, passion, prejudice, partiality, or moral delinquency." Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. When applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Id.
{¶8} Hearsay is defined as an out-of-court statement, which is offered into evidence to prove the truth of the matter asserted. Evid.R. 801(C). Generally, statements that constitute hearsay are inadmissible. Evid.R. 802; State v. Smith (Nov. 8, 2000), 9th Dist. No. 99CA007399. Therefore, it follows that evidence submitted with a motion for summary judgment or in opposition to such a motion that constitutes hearsay will not be considered by the trial court. See Bennett v. Roadway Express (Aug. 1, 2001), 9th Dist. No. 20317. See, generally, Brady-Fray at ¶30, citing Hall, 105 Ohio App.3d at 436.
{¶9} In addition to being admissible at trial, a trial court may only consider certain evidence and stipulations as set forth in Civ.R. 56(C). Specifically, the trial court is only to consider "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact[.]" Civ.R. 56(C). However, a document type not expressly mentioned in Civ.R. 56(C) may be considered by the court if it is "accompanied by a personal certification that [it is] genuine or [is] incorporated by reference in a properly framed affidavit pursuant to Civ.R. 56(E)." Modon v. Cleveland (Dec. 22, 1999), 9th Dist. No. 2945-M, citing Bowmer v. Dettelbach (1996), 109 Ohio App.3d 680, 684. Civ.R. 56(E) provides that this affidavit must be made on personal knowledge, and that a sworn or certified copy of the document referred to in the affidavit must be attached to or served with the affidavit. "`Personal knowledge' has been defined as `knowledge of factual truth which does not depend on outside information or hearsay.'" Modon, supra, quoting Wall v. Firelands Radiology, Inc. (1995), 106 Ohio App.3d 313, 335. The requirement that the papers be sworn or certified is satisfied by a certification contained within the paper itself. Wall, 106 Ohio App.3d at 334, citing Olverson v. Butler (1975), 45 Ohio App.2d 9, 12.
{¶10} "Documents submitted in opposition to a motion for summary judgment which are not sworn, certified, or authenticated by affidavit have no evidentiary value[.]" Green v. B.F. Goodrich Co., (1993), 85 Ohio App.3d 223, 228. Consequently, a trial court may not consider these documents in deciding whether to grant the summary judgment motion. Id.
{¶11} In the instant case, Goodyear sought to exclude Mr. McPherson's exhibits 58-75, which consisted of various emails and letters; the Bashen Report dated November 30, 1998; the Bashen Report dated December 3, 1998; GY02847-GY02848, GY02857-GY02858, GY02864-GY02865, GY02867-GY02871, and GY02903, which were assorted emails and letters; various portions of deposition testimony of Mr. McPherson and other witnesses; and other notes and documents. Upon a review of the record, we conclude that the trial court did not abuse its discretion when it granted Goodyear's motion to strike evidence. Specifically, the record reflects that Mr. McPherson failed to properly authenticate any of the aforementioned exhibits, reports, notes, letters, emails or documents with "a personal certification that they are genuine or *** incorporate [them] by reference in a properly framed affidavit pursuant to Civ.R. 56(E)." Modon, supra, citing Bowmer, 109 Ohio App.3d at 684. Since these items, as introduced, did not meet the Civ.R. 56(F) requirements, these items were improperly before the trial court, and were not considered by the trial court when ruling on the motion for summary judgment. See Green, 85 Ohio App.3d at 228.
{¶12} Additionally, after thoroughly reviewing the statements in the deposition testimony of Mr. McPherson and other witness as highlighted by Goodyear, we find that these statements are hearsay, and do not fall within a well-recognized exception to the hearsay rule. Evid.R. 802; State v. Wade, 9th Dist. No. 02CA0076-M, 2003-Ohio-2351, at ¶5; State v. Goff, 154 Ohio App.3d 59, 2003-Ohio-4524 at ¶5. Accordingly, as the challenged evidence is neither authenticated nor admissible at trial, we conclude that the trial court properly granted Goodyear's motion to strike evidence. Consequently, Mr. McPherson's first assignment of error, as it pertains to this issue, is overruled.
{¶13} We now turn to Mr. McPherson's allegation that the trial court erred when it denied his motion for a continuance pursuant to Civ.R. 56(F).
{¶14} Civ.R. 56(F) permits a party to seek a continuance of summary judgment proceedings in order to conduct further discovery. Nevertheless, the trial court enjoys substantial discretion in the regulation of discovery proceedings. Amer Cunningham Co., L.P.A. v. Cardiothoracic & Vascular Surgery of Akron, 9th Dist. No. 20899, 2002-Ohio-3986, at ¶16, citing Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 663, 668. See, also, State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 469. Therefore, absent an abuse of discretion, an appellate court will not reverse the trial court's ruling on such a matter. Marshall, 81 Ohio St.3d at 469. "`Despite this broad discretion held by trial courts in discovery matters, trial courts must consider the interests of parties seeking discovery and the interests of parties and nonparties resisting discovery.'" Ray v. Jacquemain, 9th Dist. No. 20851, 2002-Ohio-3192, at ¶11, quoting Martin v. The Budd Co. (1998), 128 Ohio App.3d 115, 119.
{¶15} "A party seeking a Civ.R. 56(F) continuance has the burden of...
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