[Cite as Davila v. Simpson, 2018-Ohio-946.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


EDWIN DAVILA                                  :     JUDGES:
                                              :     Hon. Patricia A. Delaney, P.J.
        Plaintiff - Appellant                 :     Hon. Craig R. Baldwin, J.
                                              :     Hon. Earle E. Wise, J.
-vs-                                          :
                                              :
JENNIFER SIMPSON                              :     Case No. 2017CA00166
                                              :
        Defendant - Appellee                  :     OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Stark County Court
                                                    of Common Pleas, Case No. 2016
                                                    CV 01691




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   March 12, 2018




APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

ED DAVILA, pro se                                   J. MICHAEL GATIEN
333 Erie Street, South #325                         2371 Chestnut Hill St., N.W.
Massillon, Ohio 44648                               North Canton, Ohio 44720
Stark County, Case No. 2017CA00166                                                 2



Baldwin, J.

      {¶1}    Appellant, Edwin Davila, appeals the decision of the Stark County Court of

Common Pleas granting summary judgment in favor of appellee, Jennifer Simpson.

                          STATEMENT OF FACTS AND THE CASE

      {¶2}    Appellant alleges that appellee intentionally interfered with his employment

by Avanti Corporation, leading to his termination on December 13, 2015.

      {¶3}    Appellant was hired by Avanti Corporation in 2001. The principal of the

company, Gaetano Cecchini, approached appellant and invited him to work for Avanti,

though the recitation of facts in appellant’s complaint reveals that many of the duties he

assumed were personal services for Mr. Cecchini. Appellant states he “agreed to work

for Cecchini and began employment with Avanti in that spring of 2001.” (Amended

Complaint, paragraph 12). The complaint describes an employee handbook that would

govern the “relationship between the employment (sic) between the plaintiff and Avanti

during the term of the employment” (Amended Complaint, paragraph 13), but it also states

that his duties would include “responsibilities which may be assigned to him on an ad hoc

basis by Cecchini, individually, or through his companies. (Amended Complaint,

paragraph 15). Finally, the complaint alleges that appellant was “also involved with

assisting Cecchini with resolving his improper relationships with certain female

employees.” (Amended Complaint, paragraph 16).

      {¶4}    Appellant contends that during settlement negotiations of a contested

divorce, Appellee requested that Mr. Cecchini terminate appellant’s employment with

Avanti and all of Mr. Cecchini’s companies. Appellant argues that his termination was the

direct result of that request and he offered documents in support of the contention that
Stark County, Case No. 2017CA00166                                                  3


appellee made that demand. He described the documents as two letters from an attorney

representing the appellee in the divorce and a responsive letter from Mr. Cecchini, all

dated 2007. Appellant also offered a memorandum he drafted after hearing a telephone

conversation purportedly between appellee and Mr. Cecchini. The letters are not

authenticated by their purported authors and the letter attributed to Mr. Cecchini is not

signed. Appellee offered nothing to authenticate the identity of the party who spoke with

Mr. Cecchini during the phone call.

      {¶5}    Appellant also submitted his affidavit containing descriptions of two

telephone conversations he witnessed between Mr. Cecchini and appellee, one dated

August 2015 and one dated November 2015, in which he contends that appellee insisted

that appellant’s termination was a critical part of any settlement of the pending complaint

for divorce. Appellant recalls that Mr. Cecchini did not agree with appellee, but told her

they would talk about it later. The identity of the other person on the phone during the

calls was not authenticated pursuant to Evid.R. 901(B)(6).

       {¶6}   Mr. Cecchini terminated appellant’s employment on December 13, 2015

due to “the distressed financial condition of Avanti Corporation and Cecchini Enterprises.”

(Amended Complaint, paragraph 26).

       {¶7}   Appellant filed a complaint on April 25, 2016 in the Cuyahoga County Court

of Common Pleas and named Mr. Cecchini and Avanti Corporation as defendants. The

defendants moved for a change of venue to Stark County on May 27, 2016. After the

exchange of several pleadings, the court granted the motion on July 15, 2016.

       {¶8}   The case was scheduled for a telephonic pretrial conference on September

6, 2016. At the conference the trial court set deadlines and included within its order the
Stark County, Case No. 2017CA00166                                                 4


following language: “plaintiff to strike extraneous statements from complaint within 30

days.” No explanation is contained within the record regarding the trial court’s intent.

Plaintiff filed an amended complaint on October 5, 2016 which included the appellee and

the allegations that are pertinent to this appeal. On November 1, 2016 appellant

dismissed all claims against Mr. Cecchini, Avanti Corporation and Cicchini, Inc., leaving

appellee the only defendant.

      {¶9}   Appellee filed an answer and counterclaim on January 17, 2017 and

appellant filed his reply on February 2, 2017. On April 18, 2017, appellant filed a motion

to disqualify appellee’s trial counsel, claiming that appellant planned to call him as a

witness. Appellee opposed that motion and filed a motion for leave to file an amended

answer. The motion requesting leave to file an amended answer was granted. Prior to the

judge issuing a ruling on the motion to disqualify, new counsel entered an appearance on

behalf of appellee making the motion to disqualify moot.

      {¶10} Appellee filed her amended answer on May 12, 2017 and scheduled the

deposition of appellant. Appellant’s deposition was completed on June 1, 2017 and filed

with the court on July 10, 2017.

      {¶11} On July 10, 2017, appellee filed a motion requesting a protective order

regarding the sealed final decree of divorce and agreed judgment entry executed by

appellee and Mr. Cecchini. Appellee requested that the court review the documents in

camera to determine whether an agreement to terminate the appellant appeared in those

documents. Appellee also requested that the documents remain sealed and that the

appellant not be permitted to review them.
Stark County, Case No. 2017CA00166                                                    5


       {¶12} On July 17, 2017, appellant filed his opposition to the appellee’s motion, but

appellant did not serve appellee with any discovery requests seeking a copy of the decree

or an opportunity to review it. Appellant asserted that the decree was irrelevant, but did

not object to the use of the decree in support of the motion for summary judgment and

did not file a motion to strike the decree from the record.

       {¶13} On August 9, 2017, the trial court found that “plaintiff has not requested the

divorce settlement agreement in discovery.” The Court further concluded “the court has

conducted a review of the document and find (sic) the same shall not be disclosed to

Plaintiff. Accordingly the motion for protective order is granted.” Appellant has not

appealed this order.

       {¶14} Both parties filed motions for summary judgment on July 10, 2017,

supported with affidavits, memoranda opposing the motions and replies. The trial court

issued a ruling on August 9, 2017 granting appellee’s motion for summary judgment and

finding the appellant’s motion moot.

       {¶15} The parties also exchanged several memoranda regarding motions in

limine involving the appellant’s criminal history as well as a motion to strike any references

to that history from the record and to strike comments made by appellee’s counsel. These

motions remained unresolved as they became moot when the motion for summary

judgment was granted.

       {¶16} Appellant filed this appeal and lists five assignments of error:

       {¶17} I. THE TRIAL COURT ERRED BECAUSE UNDER CIV. R 56(C) SIMPSON

FAILED TO FURNISH EVIDENCE DEMONSTRATING ENTITLEMENT TO SUMMARY
Stark County, Case No. 2017CA00166                             6


DISPOSITION OF THIS CASE AND SIMPSON FAILED TO DEMONSTRATE

ENTITLEMENT AS A MATTER OF LAW.

     1.     THE TRIAL COURT ERRED BECAUSE SIMPSON FAILED TO

     FURNISH PROPER DOCUMENTARY EVIDENCE SUPPORTING HER

     CLAIM FOR SUMMARY JUDGMENT.

     2.     THE TRIAL COURT ERRED BECAUSE SIMPSON FAILED TO

     DEMONSTRATE ENTITLEMENT TO SUMMARY JUDGMENT AS A

     MATTER OF LAW.

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

FAVOR OF SIMPSON WHERE SIMPSON ADMITTED IN HER AMENDED ANSWER

THAT SHE INTERFERED WITH EMPLOYMENT WITH DAVILA'S CORPORATE

EMPLOYER.

     {¶19} III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN

FAVOR OF SIMPSON WHERE SIMPSON FAILED TO PLEAD THE AFFIRMATIVE

DEFENSE OF PRIVILEGE TO INTERFERE WITH THE EMPLOYMENT OF DAVILA

AFTER SHE ADMITTED INTERFERING WITH DAVILA'S EMPLOYMENT

     {¶20} IV. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

IN FAVOR OF SIMPSON BECAUSE OHIO LAW HAS NOT RECOGNIZE (SIC) A

PRIVILEGE FOR AN ESTRANGED SPOUSE OR FORMER SPOUSE WHICH WOULD

ALLOW SIMPSON'S ADMITTED INTERFERENCE WITH DAVILA'S EMPLOYMENT

WITH HIS CORPORATE EMPLOYER.

     {¶21} V. THE TRIAL COURT ERRED IN SUGGESTING IN DICTA DAVILA'S

CORPORATE EMPLOYER HAD THE RIGHT TO TERMINATE HIM AT ITS
Stark County, Case No. 2017CA00166                                                  7


DISCRETION REGARDLESS OF SIMPSON'S INTERFERENCE AND THEREFORE

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF

SIMPSON.

       1. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

       AND SUGGESTING IN DICTA AN AT-WILL EMPLOYMENT EXISTED

       BECAUSE DAVILA'S EMPLOYMENT WAS NOT AT-WILL UNDER THE

       DOCTRINE OF PROMISSORY ESTOPPEL AND NOT AT-WILL AS A

       RESULT OF AN EMPLOYEE HANDBOOK.

       2. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

       AND SUGGESTING IN DICTA AN AT-WILL EMPLOYMENT EXISTED

       WHEN OHIO LAW PROVIDES A CLAIM OF TORTIOUS INTERFERENCE

       IS NOT BARRED BY A DISPUTED ASSERTION OF AT-WILL

       EMPLOYMENT.

                                     Standard of Review

       {¶22} Summary judgment proceedings present the appellate court with the unique

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.

The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). 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
Stark County, Case No. 2017CA00166                                                    8


      matter of law. * * * A summary judgment shall not be rendered unless it

      appears from such evidence or stipulation and only therefrom, that

      reasonable minds can come to but one conclusion and that conclusion is

      adverse to the party against whom the motion for summary judgment is

      made, such party being entitled to have the evidence or stipulation

      construed most strongly in his favor.

             Pursuant to the above rule, a trial court may not enter a summary

      judgment if it appears a material fact is genuinely disputed. The party

      moving for summary judgment bears the initial burden of informing the trial

      court of the basis for its motion and identifying those portions of the record

      that demonstrate the absence of a genuine issue of material fact. The

      moving party may not make a conclusory assertion that the nonmoving

      party has no evidence to prove its case. The moving party must specifically

      point to some evidence *759 which demonstrates the non-moving party

      cannot support its claim. If the moving party satisfies this requirement, the

      burden shifts to the non-moving party to set forth specific facts

      demonstrating there is a genuine issue of material fact for trial. Vahila v.

      Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), citing Dresher v.

      Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

Lanzer v. Louisville, 5th Dist. No. 2015 CA 00170, 2016-Ohio-8071, ¶ 31-32.
Stark County, Case No. 2017CA00166                                                9


                          Tortious Interference with Employment

      {¶23} The court in Slyman v. Shipman, Dixon & Livingston, Co., L.P.A., 2nd Dist.

Miami No. 2008-CA-35, 2009-Ohio-4126, ¶ 11 outlined the elements necessary to

establish tortious interference with an employment relationship:

             Tortious interference with an employment relationship “occurs when

      one party to the relationship is induced to terminate the relationship by the

      malicious acts of a third person who is not a party to the relationship at

      issue.” Tessmer v. Nationwide Life Ins. Co. (Sept. 30, 1999), Franklin App.

      No. 98AP-1278, 1999 WL 771013 at 6, citing Condon v. Body, Vickers &

      Daniels (1994), 99 Ohio App.3d 12, 22, 649 N.E.2d 1259. Accordingly, to

      establish such a claim, a plaintiff must demonstrate: “1) the existence of an

      employment relationship between plaintiff and the employer; 2) the

      defendant was aware of this relationship; 3) the defendant intentionally

      interfered with this relationship; and 4) the plaintiff was injured as a

      proximate result of the defendant's acts.” (Citations omitted).

      {¶24} We have confirmed the need for a malicious or wanton act that results in a

termination as vital elements of such a claim: “The general rule in Ohio is that an

employee earning a living has a right to pursue employment free from unwarranted

interference by third persons, and that one who maliciously or wantonly procures the

employee's discharge is liable in damages. Frankow v. Thorn EMI, Inc., 5th Dist. Richland

No. 92-CA-83, 1993 WL 135701, *4, (Sep. 29, 1993).
Stark County, Case No. 2017CA00166                                                    10


                                            ANALYSIS

       {¶25} The breadth of appellant’s first assignment of error belies the argument

contained within his brief. The assignment suggests a broad argument regarding the

requirements for granting summary judgment and supporting documents, but the

argument is much more narrow. Rather than a comprehensive argument regarding the

evidence offered in support of appellee’s motion for summary judgment, appellant

focuses only upon the trial court’s consideration of the appellee’s divorce decree.

       {¶26} Appellant contends that the trial court erred in considering the sealed

divorce decree and cites to the requirements of Civ.R. 56. However, appellant did not

present this argument to the trial court. The appellant opposed appellee’s motion seeking

a protective order and in camera inspection of the decree and further argued that the

decree would have no effect on his claims, but he did not file a motion to strike the decree,

nor did he register any objection to its consideration in the context of a motion for

summary judgment. “Failure to object to the court's consideration of the evidence

submitted in support of a motion for summary judgment constitutes waiver of any alleged

error in the consideration of the evidence. A trial court may consider evidence other than

the evidence specified in Civ.R.56 (C) where no objection has been raised.” Assett

Acceptance LLC v. Davis, 5th Dist. Fairfield No. 2004CA00054, 2004-Ohio-6967, ¶ 45,

citations omitted. Appellant’s failure to object to the consideration of the final decree of

divorce or agreed judgment entry or move to strike them waived any objection and the

trial court was free to give the decree whatever weight it deemed appropriate.

       {¶27} Assuming, arguendo, the agreed judgment entry and the final decree of

divorce were stricken from the record, appellee’s affidavit provides the same information
Stark County, Case No. 2017CA00166                                                  11


when she states that “[t]he terms of my Final Settlement Agreement did not include

anything regarding the plaintiff’s employment” and “I did not undertake any activity that

actually caused the termination of the plaintiff’s employment and have no knowledge of

the circumstances or reasons as to the same.” (Appellee’s affidavit attached to her Motion

for Summary Judgment as Exhibit A). Any error in the consideration of the final decree

and agreed entry would, therefore, be harmless.

       {¶28} Appellant’s second argument regarding this assignment is, similar to the

first, much narrower than the assignment would lead this court to believe. A more accurate

description of the alleged error is contained within the text of the argument where

appellant states “Thus, the trial court erred because Rule 56 does not permit a trial court

to use its reluctance in the absence of a demonstration by Simpson of evidentiary or legal

support.” (Appellant’s Amended Brief, page 10) Appellant is referring to the trial court’s

statement, on page 3 of its order where, in the context of describing the appellee’s alleged

conduct as privileged the trial court states “[t]he facts of this case are unusual and, not

surprisingly, there are no cases on point. This court is reluctant to impose liability on an

employer’s estranged spouse for the employer’s decision to terminate his employee.”

Appellant misinterprets this statement as the basis for the trial court’s decision when,

reviewed in context of the entire opinion, it is only relevant to the court’s determination

that the appellee’s alleged conduct was privileged. Because we view the trial court’s

comment regarding its reluctance relates only to the analysis of privilege, we cannot

agree that the trial court erred.

       {¶29} Appellant’s second assignment of error is overruled.
Stark County, Case No. 2017CA00166                                                      12


      {¶30} Appellant’s third assignment of error is based upon his contention that

appellee admitted tortious interference with his employment and proximate cause in her

amended answer. He concludes that, as a result, the only issue remaining to be decided

is the harm he has suffered. We disagree with his interpretation of the pleadings.

      {¶31} Appellant refers us to the following allegations in his amended complaint:

      28. During the course of their divorce proceedings between Cecchini and

      Simpson on at least three separate occasions, Simpson demanded that she

      would agree to settle the divorce, if, among other demands, Cecchini

      agreed to terminate in every way possible the employment or any other

      relationship   amongst       Cecchini,   Avanti   Corporation,   and   Cicchini

      Enterprises and Plaintiff.

      29. Cecchini agreed to the request to terminate his relationship with Plaintiff

      as demanded by Simpson but rejected some of the other settlement

      provisions.

Amended Complaint, page 5.

      {¶32} Appellant contends that the appellee’s response is an admission of tortious

interference and causal connection:

      5. Defendant admits, subject to the Affirmative Defenses as are set forth

      herein, the allegations contained in paragraphs 28 and 29 but, denies that

      Plaintiff’s employment was terminated for the allegations claimed.

Amended Answer, page 1.

      {¶33} Overlooked by appellant, but important in this context, are two affirmative

defenses asserted by appellee:
Stark County, Case No. 2017CA00166                                                    13


       11. Assuming arguendo, without an admission of the same, that Plaintiffs

       claims have any validity, his damages were caused by the acts or omissions

       of other individuals or entitles over which Defendant had no control.

       12. Plaintiffs’ claims should fail for a failure to prove the Direct and

       Proximate Cause of his damages.

Amended Answer, page 1.

       {¶34} We disagree with appellant’s characterization of the allegations and the

response, as well as his conclusions regarding their effect. At best, the allegations and

the response establish that, at some time, appellee requested appellant’s termination

during negotiation of a divorce action and, at some time, Mr. Cecchini agreed with that

request, but there is no admission Mr. Cecchini acted on appellee’s request. The

allegations and the answer cannot reasonably be construed as an admission that

appellee sought and procured appellant’s termination or that there is a causal

connection between appellee’s request and any damages suffered by appellant.

       {¶35} Appellant third assignment of error is overruled.

       {¶36} Because appellant’s third and fourth assignments of error address the issue

of privilege, we consider them simultaneously.

       {¶37} These assignments highlight appellant’s mistaken belief that privilege is an

affirmative defense in the context of a complaint for intentional interference with an

employment relationship. The burden of proving lack of privilege rests with appellant.

       *** Ohio law places the burden on the plaintiff to demonstrate improper

       conduct in order to prevail on a claim of tortious interference with a contract

       instead of requiring a defendant to assert and prove privilege in defense of
Stark County, Case No. 2017CA00166                                                    14

       such a claim. Columbia Dev. Corp. v. Krohn, 1st Dist. No. C1300842, 2014-

       Ohio-5607, 2014 WL 7277755, ¶ 25 (“Ohio law places the burden of proving

       a lack of privilege or justification upon the plaintiff.”).

Long v. Mt. Carmel Health Sys., 10th Dist. Franklin No. 16AP-511, 2017-Ohio-5522, ¶ 27.

       {¶38} “*** the law in this state imposes the burden of proving lack of privilege or

justification upon the plaintiff.” Doyle v. Fairfield Machine Co., 120 Ohio App.3d 192, 217,

697 N.E.2d 667(11th Dist.1997), (citation omitted).

       {¶39} The trial court’s recognition that that there is no precedent on point is not a

bar to the court’s consideration of the possibility that the appellee’s actions were

privileged. Nevertheless, it is clear that it was the appellant’s burden to establish that the

actions taken by appellee were not privileged and appellant failed to address this issue

before the trial court. We have reviewed the record and concluded the appellant

presented no argument or evidence to support a conclusion appellee’s actions were not

privileged. Because appellant did not make this argument before the trial court, we decline

to consider it at this juncture. Shrock Prefab, L.L.C. v. Steelrite Sys. USA, Inc., 5th Dist.

Holmes No. 15 CA 20, 2016-Ohio-3410, ¶ 33.

       {¶40} Appellant’s third and fourth assignments of error are therefore overruled.

       {¶41} Appellant’s fifth assignment of error is an incomplete statement of the trial

court’s order and, most importantly, the assignment contains language which supports

our overruling it.

       {¶42} The trial court’s ruling contains the following sentences: “Cecchini was

permitted to terminate plaintiff at his discretion, for any or no reason at all. Moreover,

there is no indication that plaintiff’s termination was predicated upon unlawful grounds.”
Stark County, Case No. 2017CA00166                                                   15


The trial court did not simply conclude that appellant was an at-will employee subject to

be terminated at any time. Nor did the trial court hold that an at-wlll employee cannot

pursue a claim for tortious interference with employment. The trial court did hold that

regardless of the appellee’s employment characterization, there was nothing in the record

to establish that his termination was based upon unlawful grounds. The appellant’s

attempt to interpret the trial court’s findings to support his assignment of error is not

persuasive.

       {¶43} Appellant’s reference to this portion of the court’s opinion as “dicta” provides

a second basis for our overruling the assignment of error. As dicta, that comment by the

trial court is not considered necessary to the decision in the case.

       Stated differently, dicta or dictum is an observation or statement in an

       opinion by the writing judge—***—which is unnecessary to resolution of the

       issues in the case ***.” Black's Law Dictionary 1102 (8th Ed.2004) (“a

       judicial comment made while delivering a judicial opinion, but one that is

       unnecessary to the decision in the case and therefore not precedential.”);

       see also Duck v. Cantoni, 4th Dist. No. 11CA20, 2012–Ohio–351, ¶ 25.

Peters v. Tipton, 7th Dist. Harrison No. 13 HA 10, 2015-Ohio-3307, ¶ 6.

       {¶44} Consequently, if we accept the appellant’s characterization of the trial

court’s observation as dicta, that comment does not state the holding of the trial court and

is not subject to reversal. Assuming, arguendo, that the statement is not dicta, we would

find that the trial court concluded that regardless of whether appellant was an at-will or

contract employee, there was nothing in the record to establish that his termination was

the result of tortious interference with the appellant’s employment.
Stark County, Case No. 2017CA00166                                                 16


      {¶45} For those reasons, appellant’s fifth Assignment of error is overruled.

      {¶46} We also find the grant of summary judgment was correct for a reason not

addressed by the trial court. Myers v. Evans Products Co., 5th Dist. Fairfield No. 25-CA-

84, 1984 WL 7610, *1 (Dec. 14, 1984). The record lacks any evidence of a causal connect

between the appellee’s alleged acts and the termination of the appellant’s employment.

Appellee has denied that she took any action that resulted in appellant’s termination and

stated that his termination was not part of her divorce decree. (Appellee’s affidavit

attached to her motion for summary judgment) Appellant contends appellee has admitted

the connection in her amended answer, but as we have addressed, appellant’s

interpretation of the appellee’s answer cannot be reasonably construed to be an

admission that supports a causal connection. In fact, the appellee’s answer expressly

denies causation. Appellant offered 3 letters, contending those letters demonstrate a

causal connection, but the letters have not been authenticated by their authors and the

relevant statements are hearsay which we decline to consider.

      {¶47} Appellant has also offered descriptions of two phone calls, but the calls have

not been authenticated pursuant to the requirements of the Evid.R. 901(B)(6) and we will

not consider them. Consequently, the record lacks any reliable evidence regarding a

causal connection between the alleged acts of appellee and appellant’s termination.

      {¶48} Appellant acknowledges his obligation to establish causation on page one

of his Motion for Summary Judgment: “Davila maintains after summary judgment is

entered the sole issues remaining for determination by the jury would be that of causation

and damages.” (Motion for summary judgment of plaintiff, page 1). No Civ.R. 56 quality

evidence was provided by appellant after he filed the motion for summary judgment that
Stark County, Case No. 2017CA00166                                                    17


would obviate the need for proof of causation. Further, appellant admitted other causes

for his termination. He acknowledged that Mr. Cecchini terminated employees over the

age of 45, that he was over the age of 45 on the date he was terminated and that he

asserted a claim with the Ohio Civil Rights Commission on those grounds. (Davila

deposition, page 4, lines 11-12; page 40, lines 4-21). Appellant admitted that Mr. Cecchini

stated that appellant’s alleged involvement in distributing campaign literature was “one of

the factors in terminating his relationship with Plaintiff.” (Amended Complaint, paragraph

107). The appellant’s acknowledgment of his obligation to prove proximate cause

between the appellee’s action and his termination, the lack of supportive evidence for that

element of his claim and his admission of other causes for his termination support

summary judgment in favor of appellee on this issue.

       {¶49} We find, therefore, that in addition to the reasons set forth by the trial court,

summary judgment is appropriate because, in construing all of the appropriate

documentation in a light most favorable to appellant, there are no genuine issues of

material fact with regard to proximate cause and appellee is entitled to judgment as a

matter of law as a result of the lack of any evidence establishing a causal connection

between the alleged acts of the appellee and the termination of appellant.
Stark County, Case No. 2017CA00166                                            18


      {¶50} The decision of the Stark County Court of Common Pleas is affirmed. Costs

assessed to appellant.

By: Baldwin, J.

Delaney, P.J. and

Earle Wise, J. concur.
