White v. Sears, Roebuck & Co.White v. Sears, Roebuck & Co.
Rendered on January 20, 2011
Cooper & Elliоtt, LLC, Rex H. Elliott, Charles H. Cooper, Jr., Bradley A. Strickling, and Adam P. Richards, for appellant.
Seeley, Savidge, Ebert & Gourash Co., LPA, Keith A. Savidge, and Andrew D. Bemer, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1} Jay P. White, plaintiff-appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the court granted summary judgment to Sears, Roebuck & Company (“Sears“), defendant-appellee, on appellant‘s claims for breach of contract and unjust enrichment.
{¶3} Appellant filed an initial action against Sears. Onе claim was dismissed by the trial court, which this court upheld in White v. Sears, Roebuck & Co., 163 Ohio App.3d 416, 2005-Ohio-5086; some claims were dismissed by the trial court for lack of subject-matter jurisdiction; and the remaining claim was voluntarily dismissed by appellant. However, after Sears refused to pay him any severance compensation, appellant filed the current action against Sears on April 16, 2009, alleging claims of breach of contract and unjust enrichment. On August 5, 2009, Sears filed a motion to dismiss, which the trial court denied September 17, 2009. On January 19, 2010, Sears filed a motion for summary judgment, which the trial court granted via judgment entry March 24, 2010. Appellant appeals the judgment of the trial court, asserting the following assignment of error:
The Trial Court erred when it granted summary judgment in favor of defendant Sears, Roebuck & Company (“Sears“) on plaintiff Jay P. White‘s claims of breach of contract and unjust
enrichment by determining that no genuine issue of material fact existed as to whether Mr. White was entitled to severance pay.
{¶4} Appellant argues in his sole аssignment of error that the trial court erred when it granted Sears summary judgment. When reviewing a motion for summary judgment, courts must proceed cautiously and award summary judgment only when appropriate. Franks v. The Lima News (1996), 109 Ohio App.3d 408.
{¶5} In the trial court‘s September 17, 2009 decision, the trial court denied Sears‘s motion to dismiss and noted:
The Court would like to issue a warning to Plaintiff. It does not like to have its time wasted. In order to prove his claims, Plaintiff must come forward with something substantial to
show the existence of these alleged “unwritten policies.” Plaintiff must further show that Defendant endorsed and regularly followed such policies. The Court will not accept Plaintiff‘s mere assertion that such policies existed. If Plaintiff does not come forward with such evidence, the Court will have no problem sanctioning Plaintiff for filing a frivolous lawsuit. Howevеr, for the time being, the Court must deny Defendant‘s motion.
{¶6} In its March 10, 2010 decision granting Sears‘s motion for summary judgment, the trial court found that appellant‘s claims for breach of contract and unjust enrichment rest upon the determination of whether he is actually entitled to severance pay. The court indicated that the only way appellant is entitled to severance pay is to affirmatively demonstrate: (1) Sears had “unwritten policies” that entitled him to severance pay; (2) these policies were widely known; and (3) Sears regularly followed these widely known policies. The court found that appellant only presented his own assertions that Sears had “unwritten policies” that entitled him to severance pay and provided no outside evidence to show the existence of such policies. The court concluded that appellant‘s personal statements were not enough to satisfy his burden of proof showing that Sears employed “unwritten policies” as to severance pay.
{¶7} Appellant contends herein that his case turns on the following two questions: (1) Was he terminated without cause? and (2) If he was terminated without cause, was he entitled to severance benefits from Sears? The second question addresses the trial court‘s basis for summary judgment. Appellant maintаins Sears established an unwritten policy entitling him to severance pay when his supervisors made promises to him that he would be entitled to such throughout his employment. In support of this assertion that there existed an unwritten policy, appellant points to the following
{¶8} We find the type of proof submitted and relied upon by appellant in this case does not meet the burden shifting requirements of Dresher. As this court has noted:
Generally, a party‘s unsupported and self-serving assertions, offered by way of affidavit, standing alone and without corroborating materials under
Civ.R. 56 , will not be sufficient to demonstrate material issues of fact. Otherwise, a party could avoid summary judgment under all cirсumstances solely by simply submitting such a self-serving affidavit containing nothing more than bare contradictions of the evidence offered by the moving party.
[A] non[-]moving party may not avoid summary judgment by merely submitting a self-serving affidavit contradicting the evidence offered by the moving party. * * * This rule is based upon judicial economy; [p]ermitting a nоn[-]moving party to avoid summary judgment by asserting nothing more than “bald contradictions of the evidence offered by the moving party” would necessarily abrogate the utility of the summary judgment exercise. * * * Courts would be unable to use
Civ.R. 56 as a means of assessing the merits of a claim at an early stage of the litigation and unnecessarily dilаte the civil process.
Greaney v. Ohio Turnpike Comm., 11th Dist. No. 2005-P-0012, 2005-Ohio-5284, ¶16.
{¶9} Appellant counters that his affidavit did not stand alone. Rather, his affidavit was corroborated by his deposition testimony and interrogatory answers. However, we find that the deposition testimony and the interrogatory answers were equally as self-serving as his affidavit and suffer from the same limitations as the аffidavit. It is not only affidavits that fall under the axiom that bald contradictions of the movant‘s evidence are insufficient to avoid summary judgment. A non-movant‘s self-serving deposition testimony is also insufficient to demonstrate a material issue of fact. Ervin v. Case Bowen Co., 10th Dist. No. 07AP-322, 2008-Ohio-393, ¶11. See also Isbell v. Johns Manville, Inc., 6th Dist. No. L-06-1240, 2007-Ohio-5355, fn. 2 (non-movant‘s self-serving deposition testimony, uncorroborated by any other evidencе, cannot avail him as against a well-supported summary judgment motion); Augusta v. Lemieux, 11th Dist. No. 2005-A-0034, 2006-Ohio-6696, ¶27 (non-movant‘s deposition testimony and subsequent affidavit are self-serving and inadequate to meet the reciprocal burden to set forth specific facts showing that there is a genuine issue for trial pursuant to Dresher); Greaney at ¶17 (non-movant‘s deposition testimony and subsequent affidavit are self-serving and insufficient to meet reciprocal
{¶10} In the present case, despite the warning issued by the trial court in denying Sears‘s motion to dismiss, appellant presented only his own unsupported assertions to counter Sears‘s motion for summary judgment. Buttressing the claims he made in his own affidavit with the same claims from his own deposition and interrogatory responses is insufficient. Appellant had approximately four months from the time of the trial court‘s denial of Sears‘s motion to dismiss until Sears filed its motion for summary judgment to conduct discovery or gather other evidence to support his contentions that Sears promised him he would be entitled to severancе benefits in accordance with its widely known and regularly followed policy, but he failed to do so. Affidavits or deposition testimony from co-workers, supervisors or managers could have created genuine issues of material fact sufficient to defeat summary judgment.
{¶11} Appellant argues that the reasoning underlying the general principle prohibiting a non-moving party from avoiding summary judgment simply by submitting a self-serving affidavit does not apply here. Appellant asserts that where, as here, the breach of an oral contract is at issue, the concern is that the oral promisor could deny the plaintiff-promisee his day in court merely by submitting his own self-serving affidavit refuting the existence of the oral promise. However, in the present case, Sears has not merely submitted a self-serving affidavit in support of its motion for summary judgment. Rather, Sears relied upon the affidavit of Ken Smith, the former District Manager for the
{¶12} Appellant also contends that Sears does not dispute his contentions that his supervisors repeatedly represented to him that he would be entitled to severance pay, and Sears only asserts the supervisors did not have the authority to make such representations. However, we fail to find where Sears has conceded this point, and appellant does not direct us to any concession in the record. In its answer to appellant‘s amended complaint, Sears denied the allegations in paragraph 8 that Sears enforced a
{¶13} With regard to appellant‘s claim for unjust еnrichment, which he pleads alternatively to his breach of contract claim, the elements of an unjust enrichment claim are as follows: (1) a benefit conferred by a plaintiff upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances where it would bе unjust to do so without payment. L & H Leasing Co. v. Dutton (1992), 82 Ohio App.3d 528, 534, citing Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183. Given we have found above that there was no unwritten policy widely known and regularly followed by Sears that absolutely entitled appellant to severance pay, even if his termination was without cause, appellant has failed to demonstrate any genuine issue of material fact аs to Sears‘s retention of a benefit under circumstances where it would be unjust to do so without payment. Even assuming Sears retained some benefit conferred upon it by appellant, there existed no unwritten policy requiring Sears to pay severance benefits, thereby rendering any failure to do so fair. Therefore, there is no genuine issue of material fact with regard to appellant‘s unjust enrichment claim, and Sears was entitled to summary judgment in this respect, as well. For all of the above reasons, the trial court properly granted summary judgment to Sears. Appellant‘s assignment of error is overruled.
{¶14} Accordingly, appellant‘s assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER and TYACK, JJ., concur.
________________________