Weaver v. Ohio Farmers Ins. Co. , 2022 Ohio 2716 ( 2022 )

[Cite as Weaver v. Ohio Farmers Ins. Co., 2022-Ohio-2716.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
JOHN WEAVER C.A. No. 22CA0004-M
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
OHIO FARMERS INSURANCE COURT OF COMMON PLEAS
COMPANY COUNTY OF MEDINA, OHIO
CASE No. 21 CV 297
Appellee
DECISION AND JOURNAL ENTRY
Dated: August 8, 2022
HENSAL, Judge.
{¶1} John Weaver appeals from the judgment of the Medina County Court of Common
Pleas. This Court affirms.
I.
{¶2} Mr. Weaver worked for Ohio Farmers Insurance Company, aka Westfield
(“Westfield”), as a learning and development operations leader in the Westfield University
department, a sub-department of the human resources (“HR”)1 department at Westfield that
provided job-related learning and development to Westfield employees. Mr. Weaver was
responsible for supervising six employees who wrote and developed materials for Westfield
University.
1
Subsequent references to the HR department include Westfield University.
2
{¶3} In the spring of 2019, Westfield reorganized the HR department in an effort to
optimize the HR department’s performance. This resulted in Mr. Weaver’s peer, Connie Frey,
being given additional responsibilities and becoming Mr. Weaver’s supervisor. Lori Gabel, the
HR talent engagement leader at Westfield, recommended that Ms. Frey be given the additional
responsibilities. According to Ms. Gabel, Ms. Frey had better supervisory skills and more
experience than Mr. Weaver, making her better suited for the role than Mr. Weaver. According to
Chris Paterakis, the former chief HR officer at Westfield and ultimate decision-maker in giving
Ms. Frey additional responsibilities, Ms. Frey was higher performing than Mr. Weaver, had more
experience, and had better relationships with Westfield’s business partners, making her better
suited for the role. According to Ms. Frey, she did not consider the additional responsibilities as
a promotion, and she did not receive an increase in pay. Aside from Ms. Frey becoming his
supervisor, Mr. Weaver’s job remained essentially the same after the reorganization of the HR
department.
{¶4} In December 2019, Westfield informed Mr. Weaver that his job was being
eliminated because Westfield decided to decentralize its employee training program, meaning
individual departments at Westfield, not the HR department, would be in charge of providing
training and development opportunities to employees. Mr. Weaver, along with one other male and
six females, was terminated from Westfield effective January 2020. According to Mr. Weaver,
Westfield terminated him because he is male. According to Westfield, it terminated Mr. Weaver
because his position was eliminated from the company. Notably, according to Ms. Frey, Westfield
also informed her in December 2019 that her role was being eliminated from Westfield. She
remained with Westfield to assist with the transition to the decentralized training program, and her
position was ultimately eliminated effective March 2021.
3
{¶5} After his termination, Mr. Weaver sued Westfield, asserting claims for age
discrimination, sex discrimination, and discrimination based upon disparate impact. Westfield
moved for summary judgment on Mr. Weaver’s claims. Mr. Weaver opposed Westfield’s motion.
In doing so, Mr. Weaver “withdr[ew]” his claims for age discrimination and discrimination based
upon disparate impact. The sole remaining claim, therefore, was sex discrimination under Revised
Code Section 4112.02(A). Accordingly, this Court will limit its discussion of the summary-
judgment arguments to those related to Mr. Weaver’s claim of sex discrimination.
{¶6} In its motion for summary judgment, Westfield asserted that Mr. Paterakis (the
former chief HR officer at Westfield), made the decision to reorganize the HR department in late
2018. Part of that reorganization involved assigning more responsibilities to Ms. Gabel, which, in
turn, necessitated reassigning some of Ms. Gabel’s responsibilities to Ms. Frey. Westfield asserted
that Ms. Frey, as opposed to Mr. Weaver, was more experienced and a better candidate to take on
these additional responsibilities. As previously noted, as a result of these changes, Ms. Frey went
from being Mr. Weaver’s peer to his supervisor.
{¶7} Westfield then asserted that, in the spring and summer of 2019, Westfield
implemented measures to reduce expenses. This included reassigning some of the learning and
development programming to the individual departments at Westfield, as opposed to being
facilitated by the HR department. This ultimately resulted in the layoff of Mr. Weaver, one other
male employee, and six female employees. Westfield asserted that the decision to layoff these
employees was solely based upon Westfield’s need to reduce expenses and was not based upon
the sex of the individuals that were laid off. Westfield, therefore, asserted that: (1) Mr. Weaver
could not show that Westfield is the unusual employer that discriminates against male employees;
and (2) Mr. Weaver could not prove that Westfield lacked a legitimate, non-discriminatory reason
4
for its layoff decision. It, therefore, argued that it was entitled to judgment as a matter of law on
Mr. Weaver’s claim of sex discrimination.
{¶8} In support of its motion, Westfield relied upon the deposition testimony of Mr.
Weaver, as well as affidavits from Mr. Paterakis, Ms. Gabel, and Amy Davin (another member of
the HR department). This Court will briefly summarize each affidavit in turn.
{¶9} Mr. Paterakis averred that he was the former chief HR officer at Westfield, and
that Ms. Gabel reported directly to him. He averred that, in late 2018, he decided to reorganize
the HR department because of business needs. He averred that Ms. Gabel and Ms. Frey were given
additional duties as a result of the reorganization, and that Ms. Frey became Mr. Weaver’s
supervisor. He averred that these changes became effective in January 2019, and that his decisions
related to the reorganization of the HR department were not based on the sex of the employees.
He averred that, after he was no longer employed with Westfield, he learned that Westfield decided
to eliminate several positions in the HR department. He averred that these eliminations were not
contemplated at the time of the reorganization in early 2019.
{¶10} In her affidavit, Ms. Gabel averred that she is the current HR talent engagement
leader at Westfield. She averred that she recommended to Mr. Paterakis that Ms. Frey be given
additional responsibilities during the reorganization of the HR department because she believed
Ms. Frey was the best person for that role. She averred that the decision to give Ms. Frey more
responsibilities was not based upon her sex.
{¶11} Ms. Gabel also averred that, in mid to late 2019, Westfield made the decision to cut
expenses throughout the company. Consistent with that decision, Ms. Gabel averred that she
decided to decentralize Westfield’s training and development program, meaning that function
would return to the individual departments, as opposed to being facilitated by the HR department.
5
As a result, she averred, she made the decision to layoff Mr. Weaver, as well as one other male
and six females. She averred that her decision was not based upon the sex of the employees, and
that it was not contemplated at the time of the reorganization in the spring and summer of 2019.
Attached to Ms. Gabel’s affidavit was an internal memorandum authored by Ms. Gabel and
directed to Ms. Davin, dated November 26, 2019, wherein Ms. Gabel discussed the need to reduce
expenses and decentralize the training and development program. That memorandum also
indicated that eight positions within the HR department would be eliminated effective January 17,
2020. Mr. Weaver’s position was listed among the positions being eliminated.
{¶12} In Ms. Davin’s affidavit, she averred that she is currently the employee relations
leader at Westfield. She averred that she was involved in the decision to layoff certain employees
in late 2019. She averred that the entire team that was developing internal educational programs
was laid off because that function was either outsourced or returned to the individual departments.
She averred that Mr. Weaver, who was the leader of that team, was laid off because his role became
unnecessary. She also averred that the decision to layoff those employees was not based upon
their sex.
{¶13} Mr. Weaver opposed Westfield’s motion for summary judgment. As previously
noted, he “withdr[ew]” his claims for age discrimination and discrimination based upon disparate
impact. His brief, therefore, solely addressed his claim of sex discrimination.
{¶14} Mr. Weaver argued that the circumstances surrounding Ms. Frey’s promotion, as
well as his subsequent termination, demonstrated that Westfield discriminated against him on the
basis of his sex. He argued that there was no competitive interview process for Ms. Frey’s new
position, that Mr. Paterakis essentially rubber-stamped Ms. Gabel’s decision to promote Ms. Frey,
that he was better suited for that position, and that Westfield promoted Ms. Frey so that it could
6
later avoid firing her during the layoffs. He also argued that Westfield’s diversity, equity, and
inclusion (“DEI”) policy demonstrated that Westfield engaged in sex discrimination by
emphasizing the need to increase the number of women and minorities in leadership roles, and by
tracking its progress towards its diversity goals by measuring “[h]eadcount[,]” which – he argued
– was tantamount to a quota. He further argued that, after his termination, Ms. Frey essentially
assumed his prior position and that, once Ms. Frey left Westfield, Westfield hired an unqualified
and inexperienced female for a position that was essentially his former job. Mr. Weaver, therefore,
argued that Westfield’s reliance upon Ms. Frey’s alleged superior qualifications and its reduction-
in-force to justify his termination was merely a pretext for sex discrimination.
{¶15} In support of his brief in opposition to Westfield’s motion for summary judgment,
Mr. Weaver relied upon the deposition testimony of Ms. Gabel, Ms. Frey, and Mr. Paterakis, as
well as various other documents, including Westfield’s job descriptions and job postings, and DEI
documents from Westfield that he obtained through a “legally protected informer[.]” After filing
his brief in opposition, Mr. Weaver filed a motion to compel and for sanctions against Westfield,
arguing that Westfield had failed to produce its DEI documentation to him during discovery. That
motion remained pending at the time the trial court issued its summary-judgment ruling.
{¶16} In its reply in support of its motion for summary judgment, Westfield reiterated that
Ms. Frey was given additional responsibilities because she was more qualified than Mr. Weaver.
Westfield also argued that the fact that Ms. Frey was later terminated as a result of the changes in
the HR department undermined Mr. Weaver’s claim that Westfield’s actions were based upon Mr.
Weaver’s sex. Westfield further argued that Ms. Frey and Mr. Weaver were not similarly situated
employees at the time of Mr. Weaver’s termination, which was fatal to his claim of sex
discrimination.
7
{¶17} Westfield also argued that its decision to layoff certain employees, the majority of
whom were female, had nothing to do with its DEI efforts. It argued that the DEI documents Mr.
Weaver cited show only that Westfield is committed to considering a more diverse pool of
candidates for available positions. In summary, Westfield argued that its decisions were
legitimate, non-discriminatory business decisions, and were not based upon Mr. Weaver’s sex.
{¶18} The trial court granted summary judgment in favor of Westfield. In the same
journal entry, the trial court also denied all motions that were not specifically granted. Because it
was not specifically granted, Mr. Weaver’s motion to compel and for sanctions against Westfield
regarding Westfield’s alleged failure to produce its DEI documentation was denied. Mr. Weaver
now appeals, raising two assignments of error for this Court’s review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED TO THE MATERIAL PREJUDICE OF THE
APPELLANT JOHN WEAVER WHEN IT GRANTED THE APPELLEE OHIO
FARMER’S INSURANCE COMPANY AKA “WESTFIELD” MOTION FOR
SUMMARY JUDGMENT FINDING THERE WAS NO GENUINE ISSUE OF
FACT TO BE FOUND IN THE RECORD TO SUPPORT THE PLAINTIFF’S RC
4112.02 SEX DISCRIMINATION CLAIMS.
{¶19} In his first assignment of error, Mr. Weaver argues that the trial court erred by
granting Westfield’s motion for summary judgment. For the reasons that follow, this Court
disagrees.
{¶20} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civil Rule 56(C), summary judgment is
proper if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving
party is entitled to judgment as a matter of law; and (3) it appears from the evidence
that reasonable minds can come to but one conclusion, and viewing such evidence
8
most strongly in favor of the party against whom the motion for summary judgment
is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶21} The party moving for summary judgment bears the initial burden of demonstrating
the absence of genuine issues of material facts concerning the essential elements of the non-
moving party’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Specifically, the moving
party must support the motion by pointing to some evidence in the record of the type listed in Civil
Rule 56(C). Id. at 292-293. If the moving party satisfies this burden, then the non-moving party
has the reciprocal burden to demonstrate a genuine issue for trial remains. Id. at 293. The non-
moving party may not rest upon the mere allegations or denials in her pleadings, but must point to
or submit evidence of the type specified in Civil Rule 56(C). Id.; Civ.R. 56(E). We now turn to
the law regarding claims of discrimination.
{¶22} Section 4112.02(A) prohibits “any employer, because of the * * * sex * * * of any
person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that
person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter
directly or indirectly related to employment.” This Court has described the framework for
analyzing claims of discrimination, including claims of reverse sex discrimination, as follows:
“Ohio courts analyze discrimination claims which are based on indirect evidence
under the framework provided by McDonnell Douglas Corp. v. Green * * *.
Generally under McDonnell Douglas, “[t]o establish a prima facie case of
discrimination, a plaintiff must show: (1) membership in a protected class; (2)
qualification for the position; (3) an adverse employment action; and (4)
replacement by a non-protected person.” * * * However, “[a] plaintiff may also
satisfy the fourth prong of a prima facie case showing by adducing evidence that [
]he ‘was [ ] treated differently than similarly situated non-protected employees.’” *
* * However, in cases alleging reverse discrimination, * * * the McDonnell Douglas
test has been modified so that, “in order to establish the first step, a plaintiff must
demonstrate background circumstances [to] support the suspicion that the
defendant is that unusual employer who discriminates against the majority.” * * *.
9
Jones v. MTD Consumer Group, Inc., 9th Dist. Medina No. 13CA0093-M, 2015-Ohio-1878, ¶ 27.
{¶23} Once a plaintiff establishes a prima facie case of discrimination, a rebuttable
presumption of discrimination is created, “and the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for taking the challenged employment action.” Id., quoting
Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir.2008). “If the defendant satisfies this
burden, the plaintiff must then prove that the proffered reason was actually a pretext to hide
unlawful discrimination.” Id., quoting Russell at 604. “To establish such pretext, a plaintiff must
show either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did
not actually motivate [his] discharge, or (3) that they were insufficient to motivate discharge.” Id.,quoting Russell at 604.
{¶24} “To overcome summary judgment on the issue of pretext, the employee cannot
simply deny the facts underlying the employer’s decision, but instead must put forth ‘evidence
creating a material dispute as to the employer’s honest belief in its proffered legitimate,
nondiscriminatory reason.’” Lehmier v. W. Res. Chem. Corp., 9th Dist. Summit No. 28776, 2018-
Ohio-3351, ¶ 22, quoting Wigglesworth v. Mettler Toledo Internatl., Inc., 10th Dist. Franklin No.
09AP-411, 2010-Ohio-1019, ¶ 19. “To exhibit an honest belief, ‘the employer must establish its
reasonable reliance on particularized facts that were before it at the time it made the adverse
employment decision.’” Id., quoting Dunn v. GOJO Industries, 9th Dist. Summit No. 28392,
2017-Ohio-7230, ¶ 18. “Mere conjecture that [the] employer’s explanation is a pretext for
intentional discrimination is an insufficient basis for denial of summary judgment.” Id., quoting
Dunnigan v. City of Lorain, 9th Dist. Lorain No. 02CA008010, 2002-Ohio-5548, ¶ 14.
{¶25} Like his brief in opposition to Westfield’s motion for summary judgment, Mr.
Weaver’s appellate brief advances several arguments as to how his termination from Westfield
10
was based upon sex discrimination as opposed to a legitimate, non-discriminatory business
decision. He again argues that the circumstances surrounding Ms. Frey’s promotion in early 2019,
including the lack of a competitive interview process for that position and his belief that he was
more qualified for that position, demonstrate that Westfield discriminated against him on the basis
of his sex. Mr. Weaver continues to argue that Westfield promoted Ms. Frey in early 2019 in order
to insulate her from being fired during the layoffs later that year, that Ms. Frey essentially assumed
his former position after his termination despite the fact that he was more qualified to continue in
that position, that – after Ms. Frey left Westfield – Westfield filled a role that was essentially his
former position with an inexperienced, unqualified female, and that – in addition to the foregoing
– Westfield’s DEI policy demonstrates that Westfield discriminated against him on the basis of his
sex.
{¶26} In response, Westfield argues that Mr. Paterakis, a male, made the decision to
reorganize the HR department in late 2018, which eventually led to Ms. Frey assuming additional
responsibilities. Westfield argues that Ms. Frey, not Mr. Weaver, was more qualified for that
position. Westfield also argues that its termination of six females at the same time it terminated
Mr. Weaver and one other male shows that its decision was not based upon Mr. Weaver’s sex. It
further argues that the fact that Ms. Frey assumed some of Mr. Weaver’s former job duties after
his termination in order to assist Westfield with its transition to a decentralized training program
does not show that it discriminated against Mr. Weaver on the basis of his sex.
{¶27} In his reply in support of his appellate brief, Mr. Weaver argues, in part, that,
although Mr. Paterakis was ultimately responsible for promoting Ms. Frey, he was simply acting
as Ms. Gabel’s “cat’s paw.” Mr. Weaver also points to Ms. Gabel’s deposition testimony that he
“did not notice before in MSJ briefing but [it] is in the record” related to Ms. Frey’s job duties.
11
Westfield has moved this Court to strike or disregard Mr. Weaver’s arguments in that regard,
arguing that they were not raised in the trial court and/or in his initial appellate brief. This Court
deferred its ruling on Westfield’s motion, noting that this Court would determine that issue during
the final disposition of the appeal. Because the arguments raised in Mr. Weaver’s reply brief in
support of his appellate brief have no bearing on this Court’s decision, we deny Westfield’s motion
to strike or disregard Mr. Weaver’s arguments as moot.
{¶28} Having reviewed the record, including the depositions, affidavits, and exhibits
included in the summary-judgment briefing, this Court concludes that the trial court did not err by
granting Westfield’s motion for summary judgment. Assuming without deciding that Mr. Weaver
established a prima facie case of sex discrimination, this Court concludes that Westfield met its
initial summary-judgment burden, and that it articulated a legitimate, nondiscriminatory reason for
terminating Mr. Weaver’s employment. Mr. Weaver, therefore, bore the burden of demonstrating
that a genuine issue of material fact remained regarding whether Westfield’s proffered reason for
his termination was merely a pretext for sex discrimination. Having reviewed the record, this
Court concludes that he failed to do so.
{¶29} Westfield presented evidence indicating that Mr. Paterakis made the decision to
reorganize the HR department, which led to Ms. Frey being given additional responsibilities. Both
Mr. Paterakis and Ms. Gabel testified that Ms. Frey was the superior candidate for that position.
According to Ms. Gabel, Ms. Frey had better supervisory skills and more experience than Mr.
Weaver, making her better suited for the role than Mr. Weaver. According to Mr. Paterakis, Ms.
Frey was higher performing than Mr. Weaver, had more experience, and had better relationships
with Westfield’s business partners, making her better suited for the role. Aside from his assertions
that he was more qualified than Ms. Frey and that he should have been given the opportunity to
12
apply for her position, Mr. Weaver did not present any evidence that created a genuine issue of
material fact as to whether Westfield’s decision in this regard was anything other than a legitimate,
non-discriminatory business decision. The fact that Westfield has a DEI policy that includes a
goal of increasing the number of women and minorities in leadership positions does alter this
conclusion.
{¶30} Westfield also presented evidence indicating that there was a decision to cut
expenses company-wide, and that – consistent with this decision – it decided to decentralize its
learning and development program. As a result, Mr. Weaver and his entire team (who wrote and
developed materials for Westfield’s learning and development program) were terminated. In total,
six women and two men (including Mr. Weaver) were terminated. Mr. Weaver has gone to great
lengths to try to establish that Westfield promoted Ms. Frey in early 2019 so that it could
discriminate against him on the basis of his sex and insulate Ms. Frey from the layoffs later that
year. Yet, there is no evidence, aside from Mr. Weaver’s own assertions, to support his argument
in that regard. According to Mr. Paterakis and Ms. Gabel, the reorganization of the HR department
in the spring of 2019 was unrelated to the layoff decisions made in December 2019. Mr. Weaver
presented no evidence to rebut that testimony.
{¶31} Additionally, Mr. Weaver relies on evidence, including job descriptions and job
postings created after his termination, to support his claims that Ms. Frey assumed his role and that
– after Ms. Frey left Westfield – an unqualified, inexperienced female assumed his prior role. Yet
he fails to acknowledge the testimony from Ms. Gabel and Ms. Frey highlighting the differences
between his former position and Ms. Frey’s position, which – as previously noted – was also
eliminated from Westfield effective March 2021. He argues that he could – and should – have
continued his employment at Westfield without acknowledging that the team he supervised was
13
also laid off, or the testimony indicating that the training and development program no longer
operates as it previously did. Despite his arguments to the contrary, this Court concludes that Mr.
Weaver’s reliance on job descriptions and job postings created after his termination did not
establish a genuine issue of material fact regarding whether Westfield’s proffered reason for his
termination was a pretext for sex discrimination.
{¶32} In conclusion, even assuming Mr. Weaver established a prima facie case of sex
discrimination, he failed to present evidence that created a genuine issue of material fact as to
whether Westfield’s proffered reason for his termination was a pretext for sex discrimination.
More specifically, he failed to present evidence that created a genuine issue of material fact as to
whether Westfield’s proffered reason had no basis in fact, did not motivate his termination, or that
it was insufficient to motivate his termination. Jones, 2015-Ohio-1878, at ¶ 27, quoting Russell,
537 F.3d at 604. His arguments amounted to mere conjecture, which is an insufficient basis for
the denial of summary judgment. Lehmier, 2018-Ohio-3351, at ¶ 22. The trial court, therefore,
did not err when it granted summary judgment in favor of Westfield. Mr. Weaver’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED TO THE MATERIAL PREJUDICE OF THE
APPELLANT JOHN WEAVER WHEN IT DENIED HIS MOTION TO COMPEL
DISCOVERY AND FOR SANCTIONS AGAINST APPELLEE OHIO
FARMER’S INSURANCE COMPANY AKA “WESTFIELD” GIVEN SAID
MOTION SOUGHT TO OBTAIN INFORMATION RELATED TO THE
DEFENDANT EMPLOYER TERMINATING THE EMPLOYMENT OF WHITE
MALE MANAGERS UNDER A COMPANY AFFIRMATIVE ACTION
POLICY.
{¶33} In his second assignment of error, Mr. Weaver argues that the trial court erred by
denying his motion to compel and for sanctions against Westfield. As explained below, this Court
14
declines to address the merits of Mr. Weaver’s argument because he has not preserved this issue
for appeal.
{¶34} “When a trial court enters summary judgment without expressly determining a
pending motion, the motion impliedly is denied.” Rhododendron Holdings, LLC v. Harris, 2d
Dist. Montgomery No. 28814, 2021-Ohio-147, ¶ 16, quoting Polivka v. Cox, 10th Dist. Franklin
No. 02AP-1364, 2003-Ohio-4371, ¶ 23. “Where the pending motion is a motion to compel, the
party opposing summary judgment must seek a delay of the trial court’s ruling pursuant to Civ.R.
56(F) or otherwise include in their response to the motion for summary judgment some allegation
of prejudice as a result of the trial court's failure to rule.” Id. quoting Polivka at ¶ 23. “If a party
fails to file a motion under Civ.R. 56(F), or does not, in their response to a summary judgment
motion, show prejudice resulting from failure to receive the discovery requested, that party fails
to preserve the issue for appeal.” Tripp v. Beverly Ent.-Ohio, Inc., 9th Dist. Summit No. 21506,
2003-Ohio-6821, ¶ 69; Koballa v. Twinsburg Youth Softball League, 9th Dist. Summit No. 23100,
2006-Ohio-4872, ¶ 42 (same).
{¶35} Here, the trial court denied all pending motions that were not specifically granted
at the time it granted summary judgment in favor of Westfield. This necessarily included Mr.
Weaver’s motion to compel and for sanctions related to Westfield’s alleged failure to produce its
DEI documentation. Mr. Weaver, however, has not identified anywhere in the record where he
sought a delay in the trial court’s ruling on Westfield’s motion for summary judgment, or otherwise
alleged prejudice as a result of the trial court’s consideration of Westfield’s motion for summary
judgment without first resolving his motion to compel. Harris at ¶ 16. He, therefore, has not
preserved this issue for appeal. Tripp at ¶ 69; Koballa at ¶ 42. Accordingly, Mr. Weaver’s second
assignment of error is overruled.
15
III.
{¶36} Mr. Weaver’s assignments of error are overruled. Westfield’s motion to strike or
disregard is denied as moot. The judgment of the Medina County Court of Common Pleas is
affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.
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APPEARANCES:
MICHAEL T. CONWAY, Attorney at Law, for Appellant.
PAUL L. JACKSON and KAREN D. ADINOLFI, Attorneys at Law, for Appellee.