[Cite as Robinson v. Vanex Tube Corp., 2016-Ohio-268.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                   TRUMBULL COUNTY, OHIO


JOHN W. ROBINSON, et al.,                                :   OPINION

                 Plaintiffs-Appellants,                  :
                                                             CASE NO. 2014-T-0087
        - vs -                                           :

VANEX TUBE CORPORATION,                                  :

                 Defendant-Appellee.                     :


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2013 CV
00772.

Judgment: Affirmed in part; reversed in part and remanded.


Raymond J. Masek, 183 West Market Street, Suite 300, Warren, OH 44481-1022 (For
Plaintiffs-Appellants).

Brendan J. Keating, Guarnieri & Secrest, P.L.L., 151 East Market Street, P.O. Box
4270, Warren, OH 44482 (For Defendant-Appellee).



THOMAS R. WRIGHT, J.


        {¶1}     This is from a final order in a civil case before the Trumbull County Court

of Common Pleas. The trial court dismissed one claim under Civ.R. 12(B)(6) and

granted summary judgment on two other claims. Focusing upon the summary judgment

ruling, appellants, John Robinson and Richard Limber, maintain that the court erred in

entering judgment against them on their age discrimination claims because there was

conflicting evidence concerning whether appellees, Vanex Tubing Corporation and VTC
Services, Inc., rehired a younger person to do the same jobs they performed before

being laid off. For the following reasons, the summary judgment ruling on the age

discrimination claims was proper, but dismissal of Robinson’s constructive fraud claim

was not.

       {¶2}   Vanex is a manufacturer of steel tubing, with its principal place of business

in Niles, Ohio. In addition to owning shares in Vanex, James Griffin is also the human

resources director of the company. Separate from Vanex, Griffin is the sole owner of

VTC Services, engaged in the business of hiring employees who then perform work for

Vanex. While VTC Services does not provide workers to any other company, Vanex

still hires some of its employees directly.

       {¶3}   John Robinson was employed by Vanex for fifteen years. Near the end of

his employment, Robinson worked as a facing machine operator. In contrast, even

though Richard Limber was also a facing machine operator at Vanex, he was employed

by VTC Services during his entire seventeen-year tenure. Neither had an employment

contract, and neither was covered under a collective bargaining agreement.            Both

Robinson and Limber were employees-at-will.

       {¶4}   In the last few months of 2008, Vanex’s business decreased. As a result,

in January 2009, a number of Vanex and VTC Services employees were terminated

using the “last hire-first fire” method. Over the next six months, Vanex did not see any

improvement in sales.     Thus, in July 2009, there were additional cuts in its workforce.

This time, however, ties were severed with all facing machine operators.

       {¶5}   On July 23, 2009, both Robinson and Limber received written notice that

they were being placed on “permanent lay-off.” Both men were at least sixty-five years




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old. A third facing machine operator, Tim Durr, then thirty-one years old, was also laid

off.

       {¶6}   Nine months later, VTC Services rehired Durr who was then assigned to

Vanex. Durr was the only facing machine operator to be recalled by either Vanex or

VTC Services. Robinson and Limber were not recalled.

       {¶7}   In April 2013, Robinson brought the underlying action against Vanex only.

In addition to alleging that his employment was unlawfully terminated as a result of his

age, Robinson further asserted that Vanex perpetrated a constructive fraud.

       {¶8}   After Vanex filed its answer, Robinson moved to add Limber as a second

plaintiff. In denying this motion, the trial court held that the addition of Limber would not

be “just” because Vanex had already submitted a responsive pleading. In light of this,

Limber instituted a separate case against Vanex. In addition to stating his own claim for

age discrimination, Limber alleged that his termination resulted in the breach of express

and implied representations made during the course of his employment.

       {¶9}   As the parties were engaging in discovery, Robinson moved the trial court

to consolidate his case with Limber’s for purposes of trying the two age discrimination

claims together. In granting this motion, the trial court expressly limited its consolidation

order to the “age discrimination matter.” Nonetheless, the two cases were subsequently

treated as if they had been consolidated for all purposes. For example, when Limber

moved to add VTC Services as the second defendant in his case, the motion was filed

under Robinson’s case number, as was the court’s judgment granting Limber’s motion.

       {¶10} After discovery was completed, Vanex and VTC Services filed a motion

seeking either dismissal of Robinson’s and Limber’s age discrimination claims under




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Civ.R. 12(B)(6) or summary judgment under Civ.R. 56(C). Under the dismissal aspect

of the motion, they contended that the discrimination claims failed to state viable

grounds for relief because Robinson’s and Limber’s complaints did not reference R.C.

Chapter 4112. Under the summary judgment aspect, appellees maintained that the

undisputed facts did not support a finding of age discrimination because Tim Durr was

not rehired to do the same job that Robinson and Limber had performed prior to being

laid off. Via affidavit, James Griffin, as human resources director for Vanex, averred

that Durr was rehired to unload trucks, not as a facing machine operator.

      {¶11} In response to appellees’ motion, Robinson and Limber first asserted that

both of their age discrimination claims would be going forward under R.C. 4112.14. As

to the summary judgment aspect of the motion, Robinson and Limber challenged

appellees’ contention as to the nature of Tim Durr’s job when he was rehired in March

2010. Attached to their response was an excerpt from John Robinson’s deposition.

According to the excerpt, Robinson testified that he spoke with Durr immediately after

Durr was recalled to work, and Durr stated that he had been rehired as a facing

machine operator.

      {¶12} The trial court dismissed Robinson’s constructive fraud claim on the

grounds that it failed to state a viable claim for relief under Ohio law and granted

summary judgment on both age discrimination claims. In concluding that there were no

genuine issues of material fact remaining to be litigated, the trial court held that

Robinson and Limber failed to present any evidence to rebut appellees’ contention that

Durr was not rehired to work as a facing machine operator.

      {¶13} Robinson and Limber raise two assignments of error for review:




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       {¶14} “[1.] The trial court committed prejudicial error in dismissing all causes of

action in the complaints of appellants when the only issue before the trial court pursuant

to its order of consolidation dated November 27, 2013 was the age discrimination

matter.

       {¶15} “[2.] The trial court committed prejudicial error in its failure to consider

termination by job classification as the controlling determinant in its holding that the

human resource director for [Vanex] averred that thirty one (31) year old Mr. Durr was

rehired to do ‘truck unloading’.”

       {¶16} Under their first assignment, appellants contest the trial court’s ruling

dismissing Robinson’s constructive fraud claim. According to them, the substance of

the constructive fraud claim should not have been addressed because the two

underlying cases were proceeding solely on the age discrimination claims. In support,

appellants emphasize that the trial court’s order to consolidate their cases was

expressly limited to the two discrimination claims.

       {¶17} Appellants’ motion to consolidate was made pursuant to Civ.R. 42(A)(1),

which allows a trial court to consolidate civil cases for hearing or trial when they involve

common issues of law or fact. The rule further provides that a consolidation order can

apply to all or some of the issues in the cases. Regarding the underlying cases, the trial

court specifically limited its consolidation order to the two discrimination claims asserted

in Robinson’s and Limber’s respective complaints. When the parties were prepared to

place the age discrimination claims before the trial court for final determination, the two

cases would go forward together.

       {¶18} However, the trial court’s consolidation order did not contain any language




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staying the rest of Robinson’s complaint, i.e., his constructive fraud claim, until after final

disposition of the age discrimination claims. To this extent, the consolidation order did

not prohibit appellees from filing a dispositive motion on the construction fraud claim.

       {¶19} Yet, appellees’ motion to dismiss and for summary judgment readily

shows that they never sought dismissal of the constructive fraud claim. While appellees

referenced Robinson’s constructive fraud allegation in summarizing his complaint, no

argument to dismiss that claim was presented. Instead, both aspects of appellees’

motion pertained solely to the age discrimination claims.          Therefore, in dismissing

Robinson’s constructive fraud claim, the trial court proceeded sua sponte.

       {¶20} “In general, a court may dismiss a complaint on its own motion pursuant to

Civ.R. 12(B)(6) only if the parties are given notice of the court’s intention to dismiss and

an opportunity to respond. State ex rel. Edwards v. Toledo City School Dist. Bd. of

Edn., 72 Ohio St.3d 106, 108, 1995-Ohio-251, * * *. A trial court errs when it dismisses

a complaint, sua sponte, without first notifying all parties of its intent.       Mayrides v.

Franklin Cty. Prosecutor’s Office (1991), 71 Ohio App.3d 381, 384, * * *. The exception

to this rule is where the complaint is frivolous or the claimant obviously cannot prevail

on the facts alleged in the complaint. State ex rel. Edwards, 72 Ohio St.3d at 108.

       {¶21} “A sua sponte dismissal without notice or an opportunity to respond is

fundamentally unfair to litigants. Mayrides, 71 Ohio App.3d at 383. It places the court

in the role of a proponent rather than an independent entity. Id. Sua sponte dismissals

also prejudice [plaintiffs] as they deny any opportunity to respond to the alleged

insufficiencies. Id. at 384.” Moore v. Houses on the Move, Inc., 177 Ohio App.3d 585,

2008-Ohio-3552, ¶12-13 (8th Dist.).




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      {¶22} As the trial court dismissed Robinson’s claim without notice or affording

him an opportunity to respond to any alleged pleading deficiencies, we cannot conclude

from the allegations in the complaint that the frivolous exception applies, and appellant

Robinson’s first assignment has merit

      {¶23} Under their second assignment, appellants challenge the trial court’s

ruling granting summary judgment on their age discrimination claims on the basis that

appellants failed to demonstrate a genuine issue of fact.

      {¶24} R.C. 4112.14(A) states:

      {¶25} “(A) No employer shall discriminate in any job opening against any

applicant or discharge without just cause any employee aged forty or older who is

physically able to perform the duties and otherwise meets the established requirements

of the job and laws pertaining to the relationship between employer and employee.”

      {¶26} Appellants had the initial burden of establishing a prima facie case of age

discrimination. Kowach v. Ohio Presbyterian Retirement Serv., 11th Dist. Trumbull No.

2010-T-0033, 2010-Ohio-4428, ¶23, citing McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973) and Barker v. Scovill, Inc., 6 Ohio St.3d 146 (1983). To carry the initial

burden, the plaintiff-employee has a choice of demonstrating the age discrimination

through either direct or indirect circumstantial evidence. Id. at ¶24. In our case, both

appellants proceeded under the “indirect circumstantial evidence” method. In Warden

v. Ohio Dept. of Natural Resources, 10th Dist. Franklin No. 13AP-137, 2014-Ohio-35,

¶29, this standard was summarized as follows:

      {¶27} “‘Absent direct evidence of age discrimination, a plaintiff may indirectly

establish discriminatory intent using the analysis promulgated in McDonnell Douglas




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Corp. * * *, as adopted by [the] Supreme Court of Ohio in Barker * * *, and modified In

Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723, * * *.’ Mittler

[v. OhioHealth Corp., 10th Dist. No. 12AP-119, 2013-Ohio-1634,] ¶19; * * *. First, the

plaintiff must establish a prima facie case. Dautartas v. Abbott Laboratories, 10th Dist.

No. 11AP-706, 2012-Ohio-1709, ¶26. To do so, the plaintiff must demonstrate by a

preponderance of the evidence that he or she: (1) was a member of the statutorily

protected class, (2) suffered an adverse employment action, e.g., was not hired for a

position for which the employee applied, (3) was qualified for the position, and (4) the

position was awarded to a person of substantially younger age. Id., citing Coryell * * *,

paragraph one of the syllabus, * * *.”

       {¶28} Appellees moved for summary judgment raising a lack of proof on the

fourth element -- whether Robinson’s or Limber’s position as a facing machine operator

had been given to a substantially younger individual. In relation to the fourth element, a

claim fails absent proof that the replacement employee does the identical job as the

terminated employee:

       {¶29} “In a [reduction in workforce], the terminated employee must show that he

was ‘replaced’ after his termination in order to establish a prima facie case of age

discrimination. Murphy v. East Akron Community House (1989), 56 Ohio App.3d 54,

57, * * *. A person is replaced only when another employee is hired or reassigned to

perform his duties. An employee is not considered replaced ‘when another employee is

assigned to perform the plaintiff’s duties in addition to other duties, or when the work is

redistributed among other existing employees already performing related work.’ Barnes

[v. GenCorp, Inc. (C.A.6, 1990), 896 F.2d 1457,] 1465.” Cassel v. Schuster Electronics,




                                            8
Inc., 159 Ohio App.3d 224, 2004-Ohio-6276, ¶22 (9th Dist.). See, also, Lascu v. Apex

Paper Box Co., 8th Dist. Cuyahoga No. 95091, 2011-Ohio-4407, ¶18.

      {¶30} It is undisputed that Tim Durr was laid off at the same time as Robinson

and Limber, and that Durr did the identical job as Robinson and Limber, i.e., facing

machine operator, immediately prior to his release. It is also undisputed that Durr was

recalled to work at Vanex nine months later. However, upon recall to work, Durr did not

perform his prior job as a facing machine operator, but instead was hired to unload

trucks. Therefore, pursuant to Cassel, Durr did not “replace” either Robinson or Limber.

      {¶31} In attempting to create a factual dispute, appellants attached to their

response brief a two-page excerpt from Robinson’s deposition. Robinson testified that

he spoke with Durr immediately after Durr started to work at Vanex again, and that Durr

informed him that he was performing the job of a facing machine operator. However,

this testimony constitutes inadmissible hearsay and accordingly cannot be used to

create an issue of fact. Mahvi v. Stanley Builders, 11th Dist. Geauga No. 2004-G-2607,

2005-Ohio-6581, ¶30. Appellants’ second assignment is overruled.

      {¶32} Based on the foregoing, this matter is reversed and remanded as to the

constructive fraud claim only.



TIMOTHY P. CANNON, J., concurs,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.



                                 ____________________




                                           9
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion

      {¶33} I respectfully dissent and would affirm the trial court’s decision in toto.

      {¶34} The majority reverses the dismissal of Robinson’s constructive fraud claim

on procedural/due process grounds: “appellees’ motion to dismiss and for summary

judgment readily shows that they never sought dismissal of the constructive fraud

claim,” and “no argument to dismiss that claim was presented.” Supra at ¶ 19. The

majority relies on authority that “a court may dismiss a complaint on its own motion

pursuant to Civ.R. 12(B)(6) * * * only if the parties are given notice of the court’s

intention to dismiss and an opportunity to respond.” State ex rel. Edwards v. Toledo

City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 108, 647 N.E.2d 799 (1995). Since

the constructive fraud claim was dismissed “without notice or affording [Robinson] an

opportunity to respond to any alleged pleading deficiencies,” the “matter is reversed and

remanded as to the constructive fraud claim only.” Supra at ¶ 22 and 32.

      {¶35} The majority recognizes, however, that “[a] court may dismiss a complaint

sua sponte and without notice when the complaint is frivolous or the claimant obviously

cannot prevail on the facts alleged in the complaint.”       Corrado v. Lowe, 11th Dist.

Geauga No. 2014-G-3239, 2015-Ohio-1993, ¶ 22, citing State ex rel. Brooks v.

O’Malley, 117 Ohio St.3d 385, 2008-Ohio-1118, 884 N.E.2d 42, ¶ 5.

      {¶36} In the present case, Robinson has failed to properly plead a claim for

constructive fraud, resulting in the waiver of that claim. As he cannot prevail on the

deficient facts alleged in the Complaint, this claim was properly subject to summary

dismissal.

      {¶37} Constructive fraud, as with other types of fraud, must be pled with

particularity pursuant to Civil Rule 9(B): “In all averments of fraud or mistake, the


                                            10
circumstances constituting fraud or mistake shall be stated with particularity. Malice,

intent, knowledge, and other condition of mind of a person may be averred generally.”

See, e.g., Oak Hill Invest. Co. v. Jablonski, 78 Ohio App.3d 643, 652, 605 N.E.2d 998

(6th Dist.1992). The failure to plead fraud with particularity results in a waiver of the

claim. Allied Erecting & Dismantling Co. v. Ohio Edison Co., Inc., 7th Dist. Mahoning

No. 10-MA-25, 2011-Ohio-2627, ¶ 42.

      {¶38} “Constructive fraud is defined as ‘a breach of a legal or equitable duty,

which, irrespective of moral guilt of the fraud feasor, the law declares fraudulent,

because of its tendency to deceive others, to violate public or private confidence, or to

injure public interests.’” (Citation omitted.) Cohen v. Estate of Cohen, 23 Ohio St.3d

90, 91, 491 N.E.2d 698 (1986). “Constructive fraud does not require proof of fraudulent

intent.” Perlberg v. Perlberg, 18 Ohio St.2d 55, 58, 247 N.E.2d 306 (1969). “An action

for actual fraud is based on an affirmative misrepresentation whereas an action for

constructive fraud results from the ‘failure to disclose facts of a material nature where

there exists a duty to speak.’” (Citation omitted.) Baughman v. State Farm Mut. Auto.

Ins. Co., 9th Dist. Summit No. 22204, 2005-Ohio-6980, ¶ 12. “Constructive fraud often

exists where the parties to a contract have a special confidential or fiduciary

relationship.” Cohen at 92.

      {¶39} With respect to constructive fraud, Robinson’s Complaint avers:

             15.    The so-called “permanent layoff” with “final payment for
             (your) services” along with a mere statement that “layoffs were
             determined by job class” with no explanatory reason as requested
             constitute constructive fraud under Ohio law.

             16.    The constructive fraud alleged irrespective of moral guilt of
             the fraud feaser [sic] has a distinct tendency to deceive others, to
             violate public or private confidence or to injure public interest.



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      {¶40} With respect to constructive fraud, the Complaint fails to satisfy Civil Rule

9(B): it fails to allege reliance, injury, and any sort of fiduciary and/or confidential

relationship. Therefore, dismissal without notice was appropriate since, pursuant to

Civil Rule 9(B), “the claimant obviously cannot prevail on the facts alleged in the

complaint.” Corrado, 2015-Ohio-1993, at ¶ 22. Accordingly, I respectfully dissent.




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