Stegawski v. Cleveland Anesthesia Group, Inc.

• Decision Date: 10 August 1987
• Docket Number: No. 52320,52320
• Parties: STEGAWSKI, Appellant, v. CLEVELAND ANESTHESIA GROUP, INC. et al., Appellees. *
• Court: Ohio Court of Appeals

Page 78

37 Ohio App.3d 78

523 N.E.2d 902

STEGAWSKI, Appellant, v. CLEVELAND ANESTHESIA GROUP, INC. et al., Appellees. ^*

No. 52320.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Aug. 10, 1987.

Syllabus by the Court

1. Failure to move to strike or otherwise object to documentary evidence submitted by a party in support of, or in opposition to, a motion for summary judgment waives any error in considering that evidence under Civ.R. 56(C).

2. When a prospective employee rejects an offer of employment, that offer is terminated and can not be renewed by the employee.

3. Ohio policy favors the fullest opportunity to complete discovery. However, the trial court has discretion in controlling the discovery process. In exercising its discretion in a discovery matter, the court balances the relevancy of the discovery request, the requesting party's need for the discovery, and the hardship upon the party from whom the discovery was requested.

4. Civ.R. 56(F) authorizes a trial court to delay decision on a summary judgment motion while the non-moving party gathers necessary rebuttal data. However, an appellant who failed to seek relief under Civ.R. 56(F) in the trial court has not preserved his rights thereto for purposes of appeal.

Richard D. Panza and Charles J. Pawlukiewicz, Lorain, for appellant.

Benesch, Friedlander, Coplan & Aronoff, David A. Schaefer and John E. Martindale, Cleveland, for appellees.

PATTON, Judge.

Christopher Stegawski, M.D. appeals the judgment of the Cuyahoga County Court of Common Pleas granting summary judgment to defendants-appellees Cleveland Anesthesia Group, Inc., Gary S. Freeman, M.D., Gerald Goldberg, M.D., and Joyce C. Hardaway, M.D. Appellant also challenges various discovery orders entered by the court and the manner in which the court regulated discovery. The facts giving rise to this appeal are as follows.

On July 2, 1984, appellant Christopher Stegawski, M.D. filed a complaint against Cleveland Anesthesia Group, Inc. (hereafter "CAG"), Gary S. Freeman, M.D. (hereafter "Freeman"), Gerald Goldberg, M.D. (hereafter "Goldberg"), Joyce C. Hardaway, M.D. (hereafter "Hardaway") and the Mt. Sinai Medical Center of Cleveland (hereafter "Mt. Sinai"). ¹ Appellant alleged, inter alia, that the defendants fraudulently induced him to accept employment with CAG to provide anesthesia services at Mt. Sinai. In his complaint, appellant alleged that Freeman, acting individually, as president of CAG and as director of the Department of Anesthesiology of Mt. Sinai, represented to appellant that if he accepted employment with CAG and obtained board certification in anesthesiology, appellant would be made a shareholder-partner in CAG.

Mt. Sinai filed a motion to dismiss or, in the alternative, for summary judgment on September 4, 1984. Mt. Sinai's motion was granted in late April or early May 1985, and it was dismissed from the action.

On or about March 13, 1985, appellant served his first request for production of documents to CAG, Mt. Sinai, Freeman, Goldberg and Hardaway. Appellant additionally sent his first set of interrogatories to Freeman, Goldberg, Hardaway and CAG on that same date. The appellees filed a motion for a protective order from appellant's discovery request, as did Mt. Sinai. The appellees contended that appellant's request was voluminous and that the information which appellant was seeking was privileged, irrelevant and generally objectionable. Appellees requested that they, at the minimum, have more time to study and review appellant's interrogatories. Appellees' motion for a protective order was held in abeyance by the court pending further order of the court.

On June 25, 1985, appellant filed a notice duces tecum to take the deposition of Mt. Sinai's records custodian on July 2, 1985 and a notice to take the deposition of Barry M. Spero, the president of Mt. Sinai at the time, on July 3, 1985.

On June 27, 1985, Mt. Sinai filed a motion to quash the subpoenas served upon Spero and Mt. Sinai's records custodian and also moved for a protective order. Mt. Sinai claimed that discovery from Mt. Sinai and Spero was irrelevant as Mt. Sinai had been removed from the case and the remaining claims involved CAG and its shareholders. Mt. Sinai also argued that appellant's duces tecum request to the custodian of records of Mt. Sinai was burdensome and oppressive.

On July 2, 1985, appellees also moved for a protective order regarding appellant's attempted discovery of information from Mt. Sinai. The appellees claimed that the information sought was irrelevant and not reasonably calculated to lead to admissible evidence.

On July 3, 1985, the court granted Mt. Sinai's motion to quash and ordered that no documents needed to be produced by Mt. Sinai.

On September 9, 1985, appellant filed a notice to take the depositions of Dr. Bechara Hatoum, Dr. Lina Bigornia, Dr. David Goldstein, Dr. Douglas Mayers, Dr. Znbeida Charania, Dr. Luke Cheriyian, Dr. Morris Mandel, Dr. Scott Boydman and Ms. Dorothy Timms. Appellees responded to these notices and the subpoenas that were issued by filing a motion to quash certain of these subpoenas. The appellees maintained that all of these individuals except Dr. Cheriyian were employees of CAG although Timms was primarily an employee of Mt. Sinai. The appellees further argued that none of the proposed deponents had any involvement in the interviewing and hiring of the appellant. The appellees sought a protective order because of the lack of reasonable notice to the appellees, appellant's questionable motives in deposing these individuals, and the lack of obtainable, relevant information.

On October 25, 1985, the court quashed the subpoenas of Timms and the remaining non-party witnesses for their scheduled dates. Appellant was barred from taking the deposition of Timms. Although appellant was permitted to take the depositions of the other non-party witnesses, the court limited the scope of inquiry at those depositions to background information and questions as to representations made to such witnesses regarding prospective employment with CAG by any agent of CAG.

Also, on October 25, 1985, appellant filed a motion to compel discovery. Appellant wanted the court to order appellees (1) to produce documents requested by appellant; (2) to answer interrogatories propounded by appellant; and (3) to answer questions asked by appellant during their depositions.

With leave of court, appellees filed a motion for summary judgment on March 4, 1986. Appellant opposed this motion, contesting that genuine issues of material fact existed. The appellees, with leave of court, filed a reply brief and a supplemental memorandum in support of their motion for summary judgment.

On June 27, 1986, the court granted appellees' motion for summary judgment. The appellant filed a timely notice of appeal from this judgment.

The instant case arises from the circumstances surrounding appellant's employment with CAG. CAG is a small group of anesthesiologists who render medical care primarily to the patients of Mt. Sinai. At all times pertinent to this action, Dr. Freeman was a shareholder in, and president of, CAG; Dr. Goldberg was a shareholder in, and secretary of, CAG; and Dr. Hardaway was a shareholder in, and treasurer of, CAG. In the late summer, early fall of 1981, appellant placed an advertisement in a professional journal in an effort to secure employment as an anesthesiologist. At the time, he was working at St. Vincent Charity Hospital. Dr. Freeman, the president of CAG and a shareholder in the corporation, responded to appellant's advertisement, and an interview with appellant was arranged for August 1981.

At the August 1981 interview, appellant spoke with both Goldberg and Freeman, although the majority of the two-hour interview was spent with Freeman. According to the appellant, Freeman represented to him during the course of this interview that once the appellant was board certified in anesthesiology, appellant would become a shareholder in CAG. Whether this statement was made is the center of the instant dispute. Freeman maintains that when the appellant inquired about shareholder status, he gave him the standard reply which he gave to other prospective candidates. He would tell the interviewees that board certification was a prerequisite to becoming a shareholder, but it was not sufficient in and of itself. Freeman also testified in his deposition that it was impossible to make a determination about a persons' value to the corporation on the basis of an initial meeting; the members of the corporation would need to see how the new employee worked and got along with the surgeons. Thus, according to Freeman, shareholder status would be discussed later.

Freeman stated that he could not recall his exact words to appellant. Freeman testified that appellant was never considered for, or promised, shareholder status.

At this interview, Freeman offered appellant a position of employment with CAG to provide anesthesiology services to Mt. Sinai. Freeman and the appellant got into a discussion about appellant's starting salary. Freeman offered appellant a salary of $85,000 in addition to other benefits; appellant requested $100,000. The interview concluded with appellant not accepting the $85,000 figure.

In early November 1981, appellant contacted Freeman by telephone. This was the first contact appellant had had with Freeman since the August 1981 interview and negotiations. During the phone conversation (that lasted ten to fifteen minutes), appellant was informed that the position he originally was seeking had been filled. Freeman made a new offer of employment to appellant and told him that CAG could not afford an initial salary of $85,000. Appellant accepted a salary of $72,500 because he understood that it was Freeman's "time to set the amount." No mention of shareholder status was made during that phone conversation.

In December 1981, appellan...