[Cite as Moreland v. E. Warther & Sons, Inc., 2016-Ohio-831.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



CAROL ANN MORELAND, et al.                                JUDGES:
                                                          Hon. Sheila G. Farmer, P. J.
        Plaintiffs-Appellants                             Hon. W. Scott Gwin, J.
                                                          Hon. John W. Wise, J.
-vs-
                                                          Case No. 2015 AP 07 0036
E. WARTHER & SONS, INC., et al.

        Defendants-Appellees                              OPINION




CHARACTER OF PROCEEDING:                              Civil Appeal from the Court of Common
                                                      Pleas, Case No. 2014 CV 09 0563


JUDGMENT:                                             Reversed and Remanded



DATE OF JUDGMENT ENTRY:                               March 2, 2016



APPEARANCES:

For Plaintiffs-Appellants                             For Defendants-Appellees

JAMES J. COLLUM                                       SUSAN C. RODGERS
MICHAEL A. THOMPSON                                   JUSTIN S. GREENFELDER
CRESCENT POINTE BUILDING                              NEIL BHAGAT
4774 Munson Street N.W.                               BUCKINGHAM, DOOLITTLE &
Suite 400                                             BURROUGHS, LLC
Canton, Ohio 44718-3634                               4518 Fulton Drive, NW, Suite 200
                                                      Canton, Ohio 44735
Tuscarawas County, Case No. 2015 AP 07 0036                                                2

Wise, J.

       {¶1}    Plaintiffs-Appellants, Carol Moreland and Joanne Warther, appeal the

decision of the Tuscarawas County Court of Common Pleas granting summary judgment

in favor of Defendants-Appellees Mark Warther, David Warther II, and Lisa Warther White

in an action for breach of fiduciary duty and civil conspiracy. The relevant facts leading to

this appeal are as follows:

       {¶2}    E. Warther & Sons, Inc. engages in business in Dover, Ohio, as a cutlery

company and operator of a gift shop. Appellants Carol Moreland and Joanne Warther, at

the times pertinent to this case, were shareholders in E. Warther & Sons, Inc., owning,

respectively, nine (9) and eleven (11) shares of the forty-nine (49) outstanding shares of

the company. The three-person board of directors of the company during the times in

question consisted of Steven Cunningham (President), Bryan Carlisle (Vice-President)

and Appellant Carol Moreland.1

       {¶3}    According to the allegations, Appellant Joanne, who is now in her eighties,

has been a shareholder in the company since the 1950s and started as an employee in

1955, while Appellant Carol began working at the company on a part-time basis in 1973

and on a full-time basis in 1981. However, both individuals were terminated from

employment in August 2014, following what they allege to be a series of demotions and

restrictions of job duties.




1  Some of the persons connected to this dispute are related by blood or marriage. For
example, Carol Moreland is the daughter of Joanne Warther. Steven Cunningham is the
son-in-law of Appellee Mark Warther, who is the son of Joanne Warther and the brother
of Carol Moreland.
Tuscarawas County, Case No. 2015 AP 07 0036                                             3


       {¶4}   On September 18, 2014, Appellants Carol Moreland and Joanne Warther

(“Carol” and “Joanne”) filed an action in the Tuscarawas County Court of Common Pleas

against Appellees Mark Warther, David Warther II, Lisa Warther White and E. Warther &

Sons, Inc., as well as five John Doe defendants, alleging breach of fiduciary duty against

all defendants and civil conspiracy against the individual defendants. In essence,

appellants asserted that they were terminated without a legitimate business purpose and

that said termination was accomplished by Steven Cunningham and Bryan Carlisle under

the direction of the individual appellees. Appellants also sought a temporary restraining

order and/or preliminary injunction reinstating appellants to their employment with E.

Warther & Sons, Inc.

       {¶5}   On October 21, 2014, E. Warther & Sons, Inc. (the corporate defendant)

filed a motion to dismiss. This motion was granted by the trial court on November 14,

2014, and this ruling is apparently not an issue in the present appeal.

       {¶6}   On December 22, 2014, appellants withdrew their motion for a preliminary

injunction.

       {¶7}   On February 27, 2015, appellees filed a motion for summary judgment, and

on March 26, 2015, the trial court ordered appellants to respond to said motion for

summary judgment on or before April 3, 2015.

       {¶8}   On April 3, 2015, appellants filed a request for a continuance under Civ.R.

56(F), seeking a hearing on appellees’ motion for summary judgment and more time to

conduct discovery in the case.

       {¶9}   On May 1, 2015, the trial court overruled appellants’ Civ.R. 56(F) motion,

thus denying appellants more time to conduct discovery and further ordering appellants
Tuscarawas County, Case No. 2015 AP 07 0036                                            4


to respond to the summary judgment motion on or before May 20, 2015. The court also

ordered an oral hearing on the motion for summary judgment. Said hearing took place on

June 8, 2015.

      {¶10} On July 1, 2015, the trial court issued a twelve-page decision granting

summary judgment in favor of appellees. The case was thereby dismissed, with prejudice.

      {¶11} Appellants filed a notice of appeal on July 16, 2015. They herein raise the

following two Assignments of Error:

      {¶12} “I.   THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

DENYING PLAINTIFFS/APPELLANTS' CIV.R. 56(F) MOTION AND FAILING TO

PERMIT     PLAINTIFFS/APPELLANTS          ADDITIONAL       TIME    FOR     DISCOVERY

RELEVANT TO THE MOTION FOR SUMMARY JUDGMENT FILED BY APPELLEES IN

THE TRIAL COURT.

      {¶13} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

IN FAVOR OF THE APPELLEES IN THAT THERE WERE GENUINE DISPUTES OF

MATERIAL FACT INCLUDING, BUT NOT LIMITED TO, WHETHER THE APPELLEES

BREACHED THEIR FIDUCIARY DUTY TO THE PLAINTIFFS/APPELLANTS, AND IN

ADDITION AND AS A RESULT, ENGAGED IN A CIVIL CONSPIRACY, AND THUS,

COULD BE FOUND LIABLE BY A JURY.”

                                              I.

      {¶14} In their First Assignment of Error, appellants contend the trial court abused

its discretion in denying their motion under Civ.R. 56(F), thus denying them additional

time for discovery regarding summary judgment. We agree.
Tuscarawas County, Case No. 2015 AP 07 0036                                                 5


       {¶15} Civ.R. 56(F) states as follows: “Should it appear from the affidavits of a party

opposing the motion for summary judgment that the party cannot for sufficient reasons

stated present by affidavit facts essential to justify the party's 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.”

       {¶16} As a general rule, a trial court has the inherent authority to manage its own

proceedings and control its own docket. See Love Properties, Inc. v. Kyles, 5th Dist. Stark

App.No. 2006CA00101, 2007–Ohio–1966, ¶ 37, citing State ex rel. Nat. City Bank v.

Maloney, 7th Dist. Mahoning No. 03 MA 139, 2003–Ohio–7010, ¶ 5. However, pursuant

to Civ.R. 56(F), supra, a party opposing summary judgment may seek a continuance to

pursue further discovery in order to develop its opposition to the motion. Polaris Ventures

IV, Ltd. v. Silverman, 5th Dist. Delaware No. 2005 CAE 11 0080, 2006-Ohio-4138, ¶ 14,

citing Vilardo v. Sheets, Twelfth Dist. Clermont No. CA2005-09-091, 2005-Ohio-3473, ¶

29. The decision of whether to grant or deny a Civ.R. 56(F) continuance is within the

sound discretion of the trial court. Bank of America, N.A. v. Moore, 5th Dist. Knox No.

13CA1, 2013-Ohio-3370, ¶ 17. In order to find an abuse of discretion, we must determine

the trial court's decision was unreasonable, arbitrary or unconscionable and not merely

an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

       {¶17} Civ.R. 56(F) requires a party opposing summary judgment to submit

affidavits with sufficient reasons stating why he or she cannot present by affidavit facts

sufficient to justify its opposition. Van Wert v. Akron Metro. Regional Transit Authority, 5th

Dist. Stark No. 2014CA00201, 2015-Ohio-3243, ¶ 22. Thus, “[t]here must be a factual

basis stated and the reasons given why [the party seeking deferral under Civ.R. 56(F)]
Tuscarawas County, Case No. 2015 AP 07 0036                                                 6

cannot present facts essential to its opposition of the motion.” McCord v. Ron Laymon

Trucking Co., 5th Dist. Knox No. 04CA000033, 2005–Ohio–4399, ¶ 15 (additional

citations omitted).

       {¶18} In their Civ.R. 56(F) motion in the case sub judice, appellants alleged three

main categories of information needed in order to generate their rebuttal evidence: (1) An

identifiable number of depositions listed by the individual to be deposed, (2) electronic

discovery (which included cellular phone records and electronic mail to and from the

individual defendants), and (3) subpoenaed electronic discovery (which included cellular

phone records and electronic mail to and from Steven Cunningham and Bryan Carlisle).

Appellants also attached individual affidavits to their Civ. R. 56(F) motion setting forth the

allegations that appellants sought to prove in the action. For example, Appellant Carol

Moreland's affidavit states in part as follows:

              9. "I believe that Steven Cunningham and Bryan Carlisle, President

       and Vice President of E. Warther & Sons, Inc., respectively, act solely on

       behalf of the individual Defendants to this case and not on behalf of E.

       Warther & Sons, Inc., which has led to adverse action taken against me in

       reference to my former employment as well as my economic interest as a

       shareholder of E. Warther & Sons, Inc.

              10. I believe acquiring electronic discovery from E. Warther & Sons,

       Inc. and the individual Defendants, as set forth in the Plaintiffs' Civ.R. 56(F)

       motion, will provide the information supporting allegations set forth in the

       Plaintiffs’ Complaint.
Tuscarawas County, Case No. 2015 AP 07 0036                                              7


             11. I believe taking the depositions, acquiring the affidavits and

      obtaining discovery responses as set forth in the Plaintiffs' Civ.R. 56(F)

      motion, will provide the information supporting allegations set forth in the

      Plaintiffs' Complaint.

      {¶19} An affidavit provided by Appellant Joanne Warther attached to the Civ.R.

56(F) motion provides virtually the same above information as Carol Moreland's affidavit.

      {¶20} Appellants urge that at the time appellees sought summary judgment on

February 27, 2015, approximately five months into the court case, only “extremely limited

discovery” had taken place, and such discovery was relative only to the allegations set

forth in the motion for preliminary injunction, which was set for hearing on January 20,

2015, but which was withdrawn prior to that date. Appellants also assert that prior to the

aforesaid date of the summary judgment motion being filed, they never had an opportunity

to fully resolve a discovery dispute regarding a subpoena served upon the corporate

entity, E. Warther & Sons, Inc., nor did they have the opportunity to perform electronic

discovery regarding electronic devices in the possession of the individual appellees, or

Mr. Cunningham (president) and Mr. Carlisle (vice-president).

      {¶21} Upon review, we are persuaded that appellants, via their Civ.R. 56(F)

motion and affidavits, were reasonably seeking sufficiently tailored information needed to

develop their case that Mr. Cunningham and Mr. Carlisle had acted under the direction of

the individual appellees as part of a civil conspiracy and/or breach of fiduciary duty. In

regard to appellants’ corresponding contention that they were denied a reasonable

opportunity to obtain discovery and respond to appellees’ motion for summary judgment,

we must first recognize that the Civil Rules allow parties to conduct discovery immediately
Tuscarawas County, Case No. 2015 AP 07 0036                                               8

“after the commencement of the action.” Fifth Third Mtge. Co. v. Bell, 12th Dist. Madison

No. CA2013–02–003, 2013–Ohio–3678, ¶ 44, citing Civ.R. 33 and 34. However, it is most

noteworthy in the case sub judice that the trial court’s own discovery schedule, as set

forth in its December 17, 2014 judgment entry, set a discovery cut-off of July 10, 2015,

with a scheduled trial date of September 22, 2015. Given the nature of the litigation

presented, we conclude the trial court’s decision of May 1, 2015 refusing to accommodate

appellants’ Civ.R. 56(F) request under the circumstances was unreasonable and

constituted an abuse of discretion.

       {¶22} Accordingly, appellants’ First Assignment of Error is sustained.

                                                II.

       {¶23} In their Second Assignment of Error, appellants contend the trial court’s

grant of summary judgment, issued subsequent to the court’s decision to overrule

appellants’ Civ.R. 56(F) motion, constituted reversible error. Based on our previous

conclusions herein, we agree.

       {¶24} Civ.R. 56(C) provides, in pertinent part: “Summary judgment shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence in the pending case and written stipulations

of fact, if any, timely filed in the action, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law. * * * A

summary judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that reasonable minds can come to

but one conclusion and that conclusion is adverse to the party against whom the motion
Tuscarawas County, Case No. 2015 AP 07 0036                                              9


for summary judgment is made, that party being entitled to have the evidence or

stipulation construed most strongly in the party's favor * * *.”

       {¶25} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35,

506 N.E.2d 212.

       {¶26} In response to the present assigned error, appellees focus much of their

initial argument on the trial court’s determination within the summary judgment ruling that

E. Warther and Sons, Inc. is not a close corporation under Ohio Law. As such, appellees

respond, there can be no finding that appellees owed appellants any type of heightened

fiduciary duty. See Weston v. Weston Paper and Mfg. Co., 2nd Dist. Montgomery No.

13815, 1994 WL 179940 (May 11, 1994). Appellees additionally respond that even if the

company is a close corporation, there is no breach of fiduciary duty under the

circumstances presented. However, in light of our conclusions above, we find these

issues to be presently premature.

       {¶27} Appellants’ Second Assignment of Error is sustained.
Tuscarawas County, Case No. 2015 AP 07 0036                                           10


      {¶28} For the reasons stated in the foregoing opinion, the decision of the Court of

Common Pleas, Tuscarawas County, granting summary judgment is hereby reversed,

and the matter is remanded for further proceedings, including the allowance of reasonable

time for discovery pursuant to Civ.R. 56(F).



By: Wise, J.

Farmer, P. J., and

Gwin, J., concur.


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