Tilberry v. McIntyre

• Decision Date: 12 October 1999
• Docket Number: No. 74549.,74549.
• Citation: 135 Ohio App.3d 229,733 NE 2d 636
• Parties: TILBERRY et al., Appellants, v. McINTYRE et al., Appellees.
• Court: Ohio Court of Appeals

135 Ohio App.3d 229

733 NE 2d 636

TILBERRY et al., Appellants, v. McINTYRE et al., Appellees.

No. 74549.

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

Decided October 12, 1999.

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Selker & Furber, Eugene I. Selker and Timothy R. Obringer, for appellants.

Reminger & Reminger, Thomas P. Mannion and Mario C. Ciano; Quandt, Giffels & Buck Co. and Timothy G. Sweeney, for appellees.

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KARPINSKI, Presiding Judge.

This appeal originally stems from a federal court trade-secret action involving an air register used in industrial furnaces and is the latest in a long course of litigation involving the parties.

Damper Design, Inc., one of its divisions, Eagleair, Inc., and its president, Donald Hagar (collectively, "DDI"), commenced the trade secrets action against Cleveland Electric Illuminating Company ("CEI"), its employee Landy Chung, and his company, Vulcan Combustion, Inc. Damper Design, Inc. et al. v. Cleveland Elec. Illum. Co. et al., N.D. Ohio, Eastern Division, No. C85-3959. Robert McIntyre, Scott Kahn, George Pilat, and the law firm of McIntyre, Kahn & Kruse, L.P.A. ("DDI counsel") represented DDI in the litigation. James Tilberry, a patent attorney, assisted Chung in obtaining a patent on the air register and appeared as his cocounsel during some of the proceedings in the federal trade-secret litigation.

DDI provided its device to CEI and subsequently believed that CEI and Chung had used its proprietary information to obtain a competing patent. CEI settled the claims against it, and DDI ultimately obtained a default judgment against Chung. The federal district court stated that it would also entertain a motion for sanctions against his counsel. DDI thereafter filed a motion for sanctions under Fed.R.Civ.Proc. 37 against attorney Tilberry and his cocounsel, who is not involved in this action, for misconduct allegedly committed during his representation of Chung. DDI argued that Tilberry improperly used a confidential deposition of Hagar in violation of a federal protective order, improperly used a confidential Burns-McDonnell engineering report comparing the devices, and violated a discovery agreement to produce the Chung patent file wrapper.

The federal district court ultimately granted sanctions against Tilberry in the amount of $197,912.80. At some point thereafter during the litigation, DDI filed a lien against the Tilberry residence, owned by James and his wife, Joanne Tilberry. On appeal, however, the Court of Appeals for the Federal Circuit reversed the order granting sanctions without an opinion. Damper Design, Inc. v. Cleveland Elec. Illum. Co. (C.A.Fed.1995), 48 F.3d 1238.

Tilberry and his wife ultimately filed this action in the common pleas court against DDI and DDI counsel, alleging malicious prosecution and abuse of process in the sanction litigation. The Tilberrys argued that DDI and its counsel lacked probable cause to pursue sanctions despite the fact that the federal district court had agreed to entertain a motion for sanctions and had initially awarded them. They also argue that DDI and its counsel used the sanction proceedings to extort a settlement against James Tilberry's legal malpractice insurer on a claim assigned to it by Chung following the default judgment against him.

The trial court granted summary judgment against the Tilberrys. They timely appeal, raising the following sole assignment of error:

"The common pleas court erred to the prejudice of plaintiffs in granting summary judgment to defendants in view of evidence in the record raising genuine issues of material fact and which precluded summary judgment as a matter of law."

This assignment of error, in each of the five separate subparts argued by the Tilberrys, lacks merit. We shall address the last argument first.

Introduction

The Tilberrys' fifth argument contends that the trial court should have declined to rule on defendants' motion for summary judgment until the Tilberrys obtained additional materials that were governed by a protective order and sealed by the federal court in the federal trade-secret action. Fed.R.Civ.Proc. 26(C)(7); Damper Design, Inc. v. Cleveland Elec. Illum. Co., N.D. Ohio, Eastern Division, No. C85-3959.

The case at bar was filed in the common pleas court on October 24, 1995, and removed to the federal district court to begin a second federal case on December 1, 1995, James Tilberry v. Robert McIntyre, N.D. Ohio, Eastern Division, No. 95 CV 2525. Approximately three months later, on March 14, 1995, the Tilberrys filed in the prior federal trade-secret case a request to unseal the record and remove all documents from the 1986 protective order. Their motion alleged that prior oral and written requests for that material in the federal trade-secret case had never been ruled on.

The instant case was subsequently remanded by the federal court to the common pleas court on March 26, 1997. Approximately seven months later, in October 1997, defendants filed motions for summary judgment. The Tilberrys thereafter filed a series of three motions for extension of time to respond to the summary judgment motions. None of these motions for extension of time, however, referred to any need for materials from the federal trade-secret action.

The trial court granted the first two motions for extension of time to oppose summary judgment. In the order granting the second extension, however, the trial court expressly stated that there would be "no further extensions of time." The Tilberrys nevertheless filed a third motion for extension of time, which the trial court denied. The Tilberrys belatedly filed their brief in opposition to summary judgment, after the deadline established by the trial court.

The Tilberrys' brief in opposition, filed January 20, 1998, raised for the first time the argument that the absence of material from the federal trade-secret case hindered their ability to oppose summary judgment. The brief was not supported by an affidavit concerning this claim. The brief asserted, after approximately twenty-seven months had elapsed since the filing of the case, that the Tilberrys' counsel was then preparing to file a motion in the Court of Appeals for the Federal Circuit for a writ of mandamus directing the federal district court to rule on their request to obtain materials from the federal trade-secret case. The Tilberrys made no argument or showing on how this proceeding would lead the federal district court to reverse its own prior discretionary ruling granting the protective order in the first place. The trial court granted summary judgment following a reply brief.

After reviewing the record, we find that the Tilberrys have failed to show that the trial court abused its discretion or committed any error by ruling on the motion for summary judgment. First, a request for an extension of time should be made by separate motion. See Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 86-87, 523 N.E.2d 902, 910-911. The Tilberrys' brief in opposition to summary judgment did not constitute such a motion and did not even request an additional extension of time. Moreover, even when such a request is raised in a proper motion, courts may summarily overrule requests for continuances if they are unsupported by affidavit as in the case at bar.¹Id.; State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14, 577 N.E.2d 352, 353-354. By failing to follow proper procedure, the Tilberrys did not preserve this claim of error. Stegawski, supra, 37 Ohio App.3d at 87, 523 N.E.2d at 911.

Even if the claim were properly preserved and we construed the brief in opposition as a request for additional time, however, the trial court did not abuse its discretion by ruling on the motion for summary judgment. The Tilberrys raised their argument concerning the necessity of materials from the federal trade-secret action for the first time after the established deadline to oppose summary judgment. The case had been pending for approximately twenty-seven months, the trial court had already granted two extensions of time, and had already stated that it would grant no further extensions. It was not required to grant the third motion or fourth, if we were to construe it as such, in the brief in opposition.

The trial court could properly find that the Tilberrys did not diligently pursue their remedies concerning the disclosure of these materials in the federal district court or Court of Appeals for the Federal Circuit. Specifically, in his appeal to the Federal Circuit, Tilberry did not challenge the 1986 protective order as it applied to him in the sanctions litigation. Moreover, after filing the case at bar, the Tilberrys then waited months to seek the material in the federal court and years to consider filing a mandamus action in an attempt to review the federal court's original discretionary ruling.

Neither the trial court nor this court could provide any remedy or otherwise rule upon the propriety of the federal district court's action concerning the materials in the federal trade-secret action.² The litigation in the federal trade-secret proceedings had already spanned fourteen years. With no end to the litigation in sight, the trial court was not required to stay its proceedings indefinitely to satisfy the hope that something useful in this case would be obtained from the federal action. Nor was a stay required when the Tilberrys had made no specific showing, by affidavit or otherwise, that any of the materials in the federal trade-secret action would support its claims.

Malicious Prosecution

The Tilberrys' first argument challenges summary judgment on their malicious prosecution claim. To support a claim for malicious prosecution, the plaintiff must show (1) malicious institution of prior proceedings against the plaintiff by defendant, (2) lack of probable cause for the...