Conway v. Thermafab Alloy, Inc.
2013 Ohio 1539
Ohio Ct. App.2013Background
- McCreary and Conway sued Thermafab and Search Masters for defamation, privacy, and related claims after termination in 2008; Conway also sought accounting and fiduciary relief; discovery was contentious and multiple motions to compel were filed.
- Thermafab engaged Conway Group, Inc. for accounting/financial services since 2004; Conway held 7.5% ownership and was CFO by 2008.
- Search Masters provided temporary workers to Thermafab; by 2008, Thermafab suspected plaintiffs of misconduct and delaying work; in Aug 2008 plaintiffs’ employment terminated and a TRO was sought by Thermafab.
- Plaintiffs alleged coworkers were told of improper relationships and embezzlement; actions were consolidated in May 2009.
- Thermafab moved for summary judgment on defamation, invasion of privacy, and IIED in 2010; various discovery issues and amended complaints occurred; August 2010 and February 2012 orders granted summary judgment to Thermafab and dismissals followed; plaintiffs pursued Civ.R. 60(B) relief, which was denied, and final judgments were entered with this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgments were proper despite no opposition | Conway/ McCreary argue unresolved facts preclude summary judgment | Thermafab/ Search Masters contend no genuine issues and proper under Civ.R. 56 | Yes; judgments proper where no genuine issues and no failure to establish entitlement |
| Whether Search Masters’ summary judgment was proper after amended complaint | Amended complaint should have affected issues; pre-judgment opportunities should have been revisited | Amended complaint did not require renewal of motion; no genuine issues shown | Yes; properly granted; no new issues created by amendment |
| Whether Thermafab’s summary judgment on defamation/privacy/IIED was proper without opposition | Affidavits create triable issues on privilege and publication | Affidavits fail to address essential elements and privilege/publication standards | Yes; materials insufficient to defeat privilege or establish elements; judgment affirmed |
| Whether Civ.R. 60(B) relief from judgment was properly denied | Relief warranted due to discovery disputes and extensions | No final order; conduct and lack of witnesses show no grounds for relief | Yes; motion denied; order not final for purposes of review |
Key Cases Cited
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Ohio 1977) (summary judgment standard; genuine issues photo)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (summary judgment de novo; burden-shifting)
- Mitnaul v. Fairmount Presbyterian Church, 149 Ohio App.3d 769 (Ohio 2002) (evidence/summary judgment standards; discovery)
- Blount v. Schindler Elevator Corp., 2003-Ohio-2053 (Ohio 2003) (courts not required to comb record for opposing evidence)
- Singer v. Fairborn, 73 Ohio App.3d 809 (Ohio App.2d Dist. 1991) (do not require renewal of motion after amendment absent issues)
- R&R Plastics, Inc. v. F.E. Myers Co., 92 Ohio App.3d 789 (Ohio 1993) (amended complaints and summary judgment procedure)
- CitiMortgage, Inc. v. Hoge, 196 Ohio App.3d 40 (Ohio 2011) (failure to oppose does not automatically grant summary judgment)
- Rose v. Natl. Mut. Ins. Co., 134 Ohio App.3d 229 (Ohio 1999) (oppose summary judgment; burden on movant to show no triable issue)
- Welling v. Weinfeld, 2007-Ohio-2451 (Ohio 2007) (false-light invasion of privacy elements)
- Phung v. Waste Mgmt., Inc., 71 Ohio St.3d 408 (Ohio 1994) (standard for severe emotional distress)