Conway v. Thermafab Alloy, Inc.

[Cite as Conway v. Thermafab Alloy, Inc., 2013-Ohio-1539.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 98091

DANIEL P. CONWAY, ET AL.
PLAINTIFFS-APPELLANTS

vs.

THERMAFAB ALLOY, INC., ET AL.
DEFENDANTS-APPELLEES

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CV-671132 and CV-671135

BEFORE: Kilbane, J., Jones, P.J., and Keough, J.

RELEASED AND JOURNALIZED: April 18, 2013
ATTORNEY FOR APPELLANTS

Edward J. Heben
Heben & Associates, LLC
3740 Euclid Avenue
The Life Building, #200
Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEES

For Thermafab Alloy, Inc.

Martin T. Galvin
Brian D. Sullivan
Reminger Co., L.P.A.
101 W. Prospect Avenue
Suite 1400
Cleveland, Ohio 44115

For Search Masters, Inc.

Timothy J. Fitzgerald
Mark A. Greer
Gallagher Sharp
6th Floor, Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115
MARY EILEEN KILBANE, J.:

{¶1} Plaintiffs-appellants, Annette McCreary (“McCreary”) and Daniel Conway

(“Conway”) (collectively referred to as “plaintiffs”), appeal from the judgment of the trial

court that awarded summary judgment to defendants-appellees, Thermafab Alloy, Inc.;

its owners, George Donnelly (“Donnelly”) and Gilbert Sherman (“Sherman”); Combined

Resources, Inc.; 1 Fab Resources, L.L.C.; 2
and Thermafab employees, Aaron Gavlak

(“Gavlak”) and Ross Maenza (“Maenza”) (all collectively referred to as “Thermafab”);

and Search Masters, and its employees, Zachary Wilhelm (“Wilhelm”) and Thomas

Launders (“Launders”) (collectively referred to as “Search Masters”). Plaintiffs also

appeal from the order that denied plaintiffs’ motion for relief from those judgments. For

the reasons set forth below, we affirm all of the challenged orders.

{¶2} The record indicates that in September 1996, McCreary was hired by

Thermafab, a metal fabricating company. In 2004, Thermafab retained Conway’s firm,

Conway Group, Inc., as an independent contractor to perform accounting, tax, and

financial services. He was subsequently designated the Chief Financial Officer and had

a 7.5 percent ownership interest. By 2008, McCreary was working as Thermafab’s

Accounting and Human Resources Manager. Search Masters, an employee placement

firm, provided temporary workers to Thermafab at all relevant times.

1This corporation administers Thermafab’s payroll.
2This is a real estate holding company.
 {¶3} The record indicates that by July 2008, Thermafab employee Linda Savage

(“Savage”) observed that plaintiffs were engaged in frequent closed-door meetings, and

Savage began to suspect that plaintiffs were completing work for Conway’s private

accounting company on Thermafab’s time. Savage reported her concerns to Sherman

and Donnelly. On July 24, 2008, Sherman and Donnelly met with Conway and informed

him that his job was in jeopardy. According to Conway, they “alluded to the fact that

[there were rumors that] I was having an affair with McCreary, and they said I was hiding

money, and they said I was mismanaging things.” He denied the accusations but

Conway’s and McCreary’s employment relationship with Thermafab deteriorated. On

August 7, 2008, Thermafab terminated plaintiffs. On that same date, Thermafab filed a

motion for a temporary restraining order against Conway, alleging that he had made

threats against the company.3

{¶4} On September 19, 2008, Conway and McCreary filed separate actions

against Thermafab and Search Masters. The plaintiffs alleged that the defendants falsely

and maliciously told plaintiffs’ coworkers that plaintiffs were involved in an “improper

relationship,” had “embezzled” money from Thermafab, and were “subject to arrest and

prosecution.” McCreary set forth claims against all of the defendants for defamation,

false-light invasion of privacy, invasion of privacy, and intentional infliction of emotional

distress. Conway set forth claims for defamation, false-light invasion of privacy, invasion

3The parties entered into a consent agreement, and Thermafab dismissed its
action for a restraining order without prejudice on June 15, 2010.
of privacy, intentional infliction of emotional distress, conversion, and for an accounting

against the Thermafab defendants. The matters were consolidated on May 15, 2009.

{¶5} The record reveals that discovery proceeded in a contentious manner, and

plaintiffs filed numerous motions to compel in which they challenged the sufficiency of

defendants’ responses to their discovery requests.

Proceedings Involving Search Masters

{¶6} On November 13, 2009, Search Masters moved for summary judgment.

Search Masters indicated that the claims of plaintiffs were premised upon a conversation

involving McCreary’s fiancé, Thomas Joseph (“Joseph”), and his friend, Launders, in

which Launders reportedly told McCreary’s fiancé that he had heard, through Wilhelm,

that rumors were “going around” the shop that the plaintiffs were having an affair, and

that they were fired for “embezzling and having an affair.” Search Masters presented

evidence that there were in fact such rumors, and that the remarks were not defamatory, a

required element of the defamation claim for relief. Search Masters also presented

evidence that the remarks were not communicated to the public at large, and were not

“highly offensive,” as required to establish the invasion of privacy and false-light

invasion of privacy claims. Finally, Search Masters maintained that the statements were

not beyond all possible bounds of public decency, as required to show intentional

infliction of emotional distress.

{¶7} On November 18, 2009, plaintiffs filed a motion to compel Search Masters

to respond to discovery, complaining that Search Masters had not responded to plaintiffs’
interrogatories, and had not fully responded to their requests for production of documents.

On November 20, 2009, plaintiffs filed a motion for a continuance pursuant to Civ.R.

56(F), again complaining about Search Masters’ discovery responses. In support of this

motion, both Conway and McCreary submitted affidavits in which they averred that

because the responses were insufficient, plaintiffs were “unable to take depositions” and

unable to respond to the motion for summary judgment filed by Search Masters.

{¶8} On December 18, 2009, the trial court denied plaintiffs’ motion to compel

Search Masters to respond to discovery. By June 3, 2010, plaintiffs still had not filed a

brief in opposition to Search Masters’ motion for summary judgment and the trial court

granted the motion.

Proceedings Involving Thermafab

{¶9} On November 20, 2009, the Thermafab defendants notified the trial court that

“all requested discovery has been now provided * * *.” On December 9, 2009, however,

plaintiffs filed a motion for sanctions against Thermafab in which they complained that

Thermafab’s responses to interrogatories and a request for production of documents were

“partial, incomplete, and inadequate.” On December 12, 2009, the trial court ordered

the parties to complete discovery by March 1, 2010, and ordered that dispositive motions

had to be filed no later than April 1, 2010.

{¶10} On December 18, 2009, the trial court denied plaintiffs’ motion for

sanctions against Thermafab. On that same date, however, the trial court granted

plaintiffs’ motion to file an amended complaint. The amended complaints included the
original claims against all of the defendants, but added as new party defendants additional

Thermafab employees Gavlak and Maenza. In addition, Conway set forth additional

claims for breach of contract and breach of fiduciary duties against the Thermafab

defendants. The amended complaint contained no additional allegations against Search

Masters or any of the individual defendants of Search Masters.

{¶11} On December 29, 2009, the court held an attorney conference and then

noted in the court’s journal:

Discovery concerns addressed. Defendant Thermafab will provide all
corporate tax returns from 2003 to present. New litigation schedule set.
Fact discovery deadline 3/1/10. Dispositive motion deadline 4/1/10.

{¶12} The trial court later granted Thermafab until April 16, 2010, to file a

dispositive motion. On that date, Thermafab moved for summary judgment on the

defamation, invasion of privacy, and intentional infliction of emotional distress claims.

Thermafab provided affidavits from each of the individual defendants, all of whom

denied making defamatory statements about Conway and McCreary. Donnelly and

Sherman further averred that plaintiffs were terminated following an investigation that

revealed both plaintiffs had received unauthorized raises and that Thermafab handled the

terminations discreetly, discussing the terminations only with essential personnel.

{¶13} Thermafab argued that plaintiffs could not establish their defamation claim

because there was no publication of a defamatory statement, and the defendants had acted

within their qualified privilege. Thermafab additionally argued that the invasion of

privacy claims were without merit as a matter of law, because there was no intentional
publication of an offensive matter, and that plaintiffs’ claim for intentional infliction of

emotional distress could not be maintained because there was no outrageous, intolerable

conduct, and plaintiffs had not suffered severe or debilitating distress.

{¶14} On April 30, 2010, plaintiffs filed a motion for an extension of time to

respond to Thermafab’s motion for summary judgment, stating that “pursuant to the Local

Rules is due on May 17, 2010,” and that counsel for plaintiffs was scheduled to have

surgery. Plaintiffs requested “a thirty (30) day extension of time until June 17, 2010 to

respond” to the motion for summary judgment.

{¶15} On June 2, 2010, plaintiffs filed a motion to compel the Thermafab

defendants to “fully and adequately respond to * * * plaintiffs’ first request for production

of documents, and for an extension of case management dates pursuant to Civ.R. 56(F) to

undertake the depositions of those persons who have submitted affidavits in support of

[Thermafab’s motion] for summary judgment.”

{¶16} On June 10, 2010, the trial court held a pretrial in the matter and granted

plaintiffs until July 2, 2010, to submit their brief in opposition to Thermafab’s motion for

summary judgment. This order additionally states: “No further extensions will be

granted on any date.”

{¶17} On June 21, 2010, the trial court granted plaintiffs’ April 30, 2010 motion

for an extension of time to respond to summary judgment, i.e., plaintiffs’ motion

requesting until June 17, 2010 to respond. The court also ordered that plaintiffs’ motion

to compel the Thermafab defendants to “fully and adequately respond” to discovery was
held in abeyance, and that plaintiffs must “more accurately describe the documents

sought.” The court further ordered:

[The Thermafab defendants] must provide documents including emails or
other electronic data reflecting information as to the firing of plaintiffs
and/or alleged misconduct of plaintiffs justifying the firing and financial
data sought for the accounting [cause of] action.

{¶18} On July 6, 2010, plaintiffs filed a list describing 41 items that they were

seeking from Thermafab. It is undisputed that on August 12, 2010, Thermafab provided

some discovery to plaintiffs.

{¶19} By August 20, 2010, plaintiffs still had not filed a brief in opposition to

Thermafab’s motion for summary judgment. Thereafter, in an order journalized on

August 20, 2010, the trial court held: “Defendant’s motion for summary judgment is

unopposed and granted.”

{¶20} On August 25, 2010, plaintiffs filed a motion for reconsideration, again

claiming that defendants had not fully complied with discovery and did not provide the

plaintiffs’ personnel files and email. Plaintiffs’ counsel also claimed that in a discussion

with the trial court’s judicial attorney on July 8, 2010, he was informed that plaintiffs’

brief in opposition to the motion for summary judgment was not due until the discovery

issues were resolved. On September 16, 2010, the trial court issued an order deeming the

award of summary judgment a final appealable order and dismissing the case with

prejudice.

{¶21} On September 17, 2010, plaintiffs filed a notice of appeal to this court

designated Conway v. Thermafab Alloy, 8th Dist. No. 95731. On that same date,
plaintiffs also filed a motion for relief from judgment pursuant to Civ.R. 60(B)(1) in the

trial court. On September 29, 2010, this court issued a limited remand of the case back

to the trial court and ordered:

Motion by appellants for remand is granted for the limited purpose of
reviewing a Civ.R. 60(B) motion. Case returnable to the Court of Appeals
on or before October 13, 2010.

{¶22} On October 13, 2010, this court issued a further order which stated: “This

appeal is remanded to the trial court pursuant to [the prior order] until October 29, 2010.”

{¶23} On October 18, 2010, the trial court held a hearing on plaintiffs’ motion for

relief from judgment. At this time, counsel for plaintiffs complained that he believed

that he was not required to file his brief in opposition to the Thermafab motion for

summary judgment until all discovery disputes were resolved. Plaintiffs presented no

witnesses at this hearing. On October 21, 2010, the trial court denied plaintiffs’ motion

for relief from judgment, the court stated in relevant part:

The final pretrial conference of June 2, 2010 saw the continuation of
allegations from [plaintiffs’ counsel] that defense counsel failed to provide
discovery. Defendants’ counsel denied these allegations, and specific
documents were discussed and the Court did not rule on [plaintiffs’
counsel’s] accusations as the time for response had not expired and defense
counsel wished to respond. Defense counsel also agreed to work with
[plaintiffs’ counsel] and asked for the specific documents to be itemized to
avoid further disagreement. The Court suggested a time frame for
plaintiffs’ response to the summary judgment motion and [plaintiffs’
counsel] asked for more time to which this Court agreed. All parties
present understood the deadline would be July 2, 2010 without further
extensions * * *.

* * * [At the Civ.R. 60(B) hearing,] Plaintiffs failed to produce any
witnesses to offer testimony to the Court, nor allow cross-examination by
defendants. * * * Notably, even [plaintiff] Conway instructed
 [plaintiffs’ counsel] to file a substantive answer to the summary judgment
motion.

This evidence does little to convince this Court that plaintiffs are entitled to
relief under Civ.R. 60(B) * * *. In fact, it shows a complete disregard for
the judicial system and his deliberate attempt to manipulate the proceedings.

{¶24} On November 9, 2010, plaintiffs appealed to this court. This court

determined, however, that since Thermafab’s motion for summary judgment did not

address the claims for conversion, breach of contract, and breach of fiduciary duties, there

was no final appealable order, and the matter was returned to the trial court for further

proceedings on these claims. Conway v. Thermafab Alloy, 8th Dist. No. 95990 (May

11, 2011).

{¶25} On November 21, 2011, the Thermafab defendants moved for summary

judgment on the remaining claims. Thermafab presented evidence that it did not

withhold any of Conway’s property, so the conversion claim must fail. Thermafab also

presented evidence that the corporate entities had no value, so the claim for an accounting

must also fail. Finally, Thermafab presented evidence that the claims for breach of

contract and breach of fiduciary duties were without merit because Conway was

essentially an at-will employee with no written employment contract, and he admitted

financial improprieties so he could not establish damages.

{¶26} Rather than responding to Thermafab’s motion for summary judgment on

the remaining claims for relief, plaintiffs again filed a motion for a discovery continuance

pursuant to Civ.R. 56(F) on December 22, 2011.
 {¶27} By February 10, 2012, plaintiffs still had not filed a brief in opposition to

Thermafab’s motion for summary judgment on the remaining claims, the trial court

denied plaintiffs’ request for a continuance pursuant to Civ.R. 56(F), and granted

Thermafab’s motion for summary judgment. Plaintiffs now appeal, and assign five

errors for our review.

{¶28} Plaintiffs’ first, second, third, and fifth assignments of error are interrelated

and state:

The trial court committed reversible error when it granted the Thermafab
Appellees’ * * * motion for summary judgment as unopposed on August
20, 2010.

The trial court committed reversible error when it granted the Thermafab
Appellees’ * * * second motion for summary judgment on February 13,
2012.

The trial court committed reversible error when it granted the Thermafab
Appellees’ * * * motions for summary judgment on August 20, 2010 and on
February 13, 2012 prior to the Appellants receiving necessary requested
discovery.

The trial court committed reversible error when it granted the Search

Masters Appellees’ motion for summary judgment.

Summary Judgment

{¶29} A reviewing court reviews an award of summary judgment de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241;

Mitnaul v. Fairmount Presbyterian Church, 149 Ohio App.3d 769, 2002-Ohio-5833, 778

N.E.2d 1093 (8th Dist.). Therefore, this court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the nonmoving party and
resolving any doubt in favor of the nonmoving party. Viock v. Stowe-Woodward Co., 13

Ohio App.3d 7, 12, 467 N.E.2d 1378 (6th Dist.1983).

{¶30} Pursuant to Civ.R. 56(C), summary judgment is proper if:

(1) No genuine issue as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears
from the evidence that reasonable minds can come to but one conclusion,
and viewing such evidence most strongly in favor of the party against whom
the motion for summary judgment is made, that conclusion is adverse to
that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364
N.E.2d 267 (1977).

{¶31} Once a moving party satisfies its burden of supporting its motion for

summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), the

nonmoving party must set forth specific facts, demonstrating that a “genuine triable issue”

exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447,

449, 1996-Ohio-211, 663 N.E.2d 639. However, the fact that no response was filed

should not automatically lead to the granting of the motion for summary judgment.

CitiMortgage, Inc. v. Hoge, 196 Ohio App.3d 40, 2011-Ohio-3839, 962 N.E.2d 327, ¶ 14

(8th Dist.), citing Rose v. Natl. Mut. Ins. Co., 134 Ohio App.3d 229, 730 N.E.2d 1014

(7th Dist.1999).

{¶32} Loc.R. 11(I) of the Court of Common Pleas of Cuyahoga County, General

Division, gives a party 30 days within which to file a motion opposing summary judgment

and provides that the trial court may decide the motion on briefs unless otherwise stated

by the trial court.

{¶33} Pursuant to Civ.R. 56(F), a trial court may, within its discretion, refuse the
application for summary judgment, order a continuance to permit affidavits to be obtained

in opposition to the motion for summary judgment, grant a continuance for further

discovery, or it may make such other order as is just. Gates Mills Invest. Co. v. Pepper

Pike, 59 Ohio App.2d 155, 392 N.E.2d 1316 (8th Dist.1978).

Search Masters’ Motion for Summary Judgment

{¶34} Plaintiffs argue that the trial court erred in awarding Search Masters

summary judgment because plaintiffs, with leave of court, filed an amended complaint

after Search Masters’ motion for summary judgment was filed. We note, however, that:

The Civil Rules do not provide that a pending motion for summary
judgment is rendered void by the filing of an amended complaint. There is
no affirmative duty upon the moving party to renew its motion for summary
judgment as Singer contends, at least in the absence of any amendment to
the complaint that would affect the issues raised in the motion for summary
judgment.

Singer v. Fairborn, 73 Ohio App.3d 809, 813, 598 N.E.2d 806 (2d Dist.1991). Accord

R&R Plastics, Inc. v. F.E. Myers Co., 92 Ohio App.3d 789, 808, 637 N.E.2d 332 (6th

Dist.1993).

{¶35} Plaintiffs next argue that the materials submitted in support of their motion

for a continuance pursuant to Civ.R. 56(F) were sufficient to create a genuine issue of

material fact. The record clearly indicates that plaintiffs did not file a brief in opposition

to Search Masters’ motion for summary judgment, and the trial court was not required to

cull the affidavits from the record and consider them in opposition to Search Masters’

motion for summary judgment. Blount v. Schindler Elevator Corp., 10th Dist. No.

02AP-688, 2003-Ohio-2053. The Blount Court explained:
 Particularly in cases that include multiple parties and generate voluminous

records, a trial court cannot be expected to search through the record to find

some evidence that allegedly supports the existence of a material issue of

fact. Rather, the burden is on the party opposing summary judgment to set

forth specific facts showing that there is a genuine issue for trial. A trial

court is under no obligation to search the record for potentially relevant

evidence[.]

{¶36} In any event, the affidavits that plaintiffs presented in support of their

motion for a continuance under Civ.R. 56(F), insofar as they pertain to Search Masters’

defendants, contain impermissible hearsay within hearsay. They are, therefore, improper

under Evid.R. 805. Accord Holman v. Grandview Hosp. & Med. Ctr., 37 Ohio App.3d

151, 157, 524 N.E.2d 903 (2d Dist.1987). That is, the affidavit of McCreary’s fiancé,

Joseph, indicated that Launders informed him that Wilhelm had made such statements,

and plaintiffs were relying upon the out-of-court declarants’ (Launders and Wilhelm)

alleged statements for the truth of the matter asserted.

{¶37} Plaintiffs’ remaining averments pertained to the Thermafab employees, who

maintained that they had learned of plaintiffs’ alleged affair and embezzlement from other

Thermafab employees. As such, they do not create a genuine issue of material fact as to

the Search Masters’ defendants.

{¶38} Moreover, the allegations contained in the Civ.R. 56(F) affidavits are not

sufficient to create a genuine issue of material fact for trial because they touch only upon
the statements and do not address the remaining elements of a cause of action for

defamation, 4 invasion of privacy, 5 false-light invasion of privacy 6 and intentional

infliction of emotional distress.7

{¶39} In accordance with the foregoing, Search Masters was properly awarded

summary judgment on these claims for relief.

4 The elements of a claim for defamation are (1) a false and defamatory
statement concerning another, (2) publication of that statement to a third-party, (3)
injury to the plaintiff, and (4) fault on the part of the defendant. Montgomery v.
Ohio State Univ., 10th Dist. No. 11AP-1024, 2012-Ohio-5489. A communication
made in good faith on a matter of common interest between an employer and an
employee, or between two employees concerning a third employee, is protected by
qualified privilege. Davis v. Cleveland, 8th Dist. No. 83665, 2004-Ohio-6621, ¶ 43.
5 The elements of this tort are: (1) disclosure of a public nature; (2)
concerning the private life of an individual; (3) of a matter which would be highly
offensive and objectionable to a reasonable person of ordinary sensibilities; (4) done
intentionally, not negligently; (5) and that is not of a legitimate concern to the
public. Scroggins v. Bill Furst Florist & Greenhouse Inc., 2d Dist. No. 19519,
2004-Ohio-79.
6Under the tort of false-light invasion of privacy, one who gives publicity to a
matter concerning another that places the other before the public in a false light is
subject to liability to the other for invasion of his privacy if (1) the false light in
which the other was placed would be highly offensive to a reasonable person, and
(2) the actor had knowledge of or acted in reckless disregard as to the falsity of the
publicized matter and the false light in which the other would be placed. Welling
v. Weinfeld, 113 Ohio St.3d 464, 2007-Ohio-2451, 866 N.E.2d 1051, syllabus.
7The elements of this tort are: (1) that the actor either intended to cause
emotional distress or knew or should have known that actions taken would result in
serious emotional distress to the plaintiff; (2) that the actor’s conduct was so
extreme and outrageous as to go beyond all possible bounds of decency and was
such that it can be considered as utterly intolerable in a civilized community; (3)
that the actor’s actions were the proximate cause of the plaintiff’s psychic injury;
and (4) that the mental anguish suffered by plaintiff is serious and of a nature that
no reasonable man could be expected to endure it. Phung v. Waste Mgmt., Inc., 71
Ohio St.3d 408, 410, 1994-Ohio-389, 644 N.E.2d 286.
 {¶40} The fifth assignment of error is therefore without merit.

Thermafab’s Motion for Summary Judgment

{¶41} Plaintiffs next maintain that the trial court erred in rendering the August 20,

2010 award of summary judgment to the Thermafab defendants because plaintiffs

maintain they presented affidavits that established the defendants made defamatory

statements that plaintiffs had embezzled, were involved in an improper relationship, and

were going to be arrested. Plaintiffs additionally maintain that defendant Sherman’s

statement that there “will be no investigation” defeats Thermafab’s claim of privilege

herein. Plaintiffs also argue that the trial court erred by awarding summary judgment to

Thermafab on August 20, 2010, because on June 22, 2010, it ordered that “Plaintiffs’

motion for an extension of time to respond to motion for summary judgment is granted.”

Finally, plaintiffs argue that the trial court erred in awarding Thermafab summary

judgment on its remaining claims on February 13, 2012.

{¶42} Beginning with the issue of whether the trial court erred in awarding

Thermafab partial summary judgment on August 20, 2010, we note that Thermafab

presented evidence to defeat plaintiffs’ claims for defamation, invasion of privacy,

false-light invasion of privacy, and intentional infliction of emotional distress. Plaintiffs

at no point in the litigation filed a brief in opposition to Thermafab’s motion for summary

judgment.

{¶43} Plaintiffs insist, however, that they did, at various times in this matter, file

affidavits from current and former Thermafab employees, so the trial court should have
denied Thermafab’s motion for summary judgment on the basis of these affidavits.

Given the failure of plaintiffs to file a brief in opposition to Thermafab’s motion for

summary judgment, the trial court was not required to search the entire record for

affidavits that could potentially create a genuine issue of material fact. Blount, 10th Dist.

No. 02AP-688, 2003-Ohio-2053, ¶ 40.

{¶44} That being said, we conclude that even if the court did compile these

affidavits and deem them to be plaintiffs’ response to Thermafab’s motion for summary

judgment, these materials simply indicate that certain Thermafab employees said that

plaintiffs were involved in an improper relationship and embezzled funds, and that

defendant Sherman did not believe that it was necessary to conduct a further investigation

into the matter. As such, these affidavits do not address all of the essential elements of

their claims for relief and are, therefore, insufficient to create genuine issues of material

fact to bar summary judgment. That is, plaintiffs presented no evidence to indicate that

the statements were made without good faith, or to otherwise defeat Thermafab’s claim of

qualified privilege to the defamation claim. Plaintiffs presented no evidence to indicate

that the statements were intentionally made to the public at large, or to otherwise create a

genuine issue of material fact on the invasion of privacy claim. Plaintiffs presented no

evidence to indicate that the speaker had knowledge of or acted in reckless disregard as to

the falsity of a publicized matter, or to otherwise create a genuine issue of material fact on

the false-light invasion of privacy claim. In addition, plaintiffs presented no evidence

that they suffered severe emotional distress as a result of the statements, or to establish
damages, as required to create a genuine issue of material fact on the intentional infliction

of emotional distress claim.

{¶45} Plaintiffs also argue that the trial court erred by awarding summary

judgment to Thermafab on August 20, 2010, because on June 22, 2010, it ordered that

“Plaintiffs’ motion for an extension of time to respond to motion for summary judgment

is granted.” We note, however, that the June 22, 2010 order did not grant plaintiffs an

open-ended continuance. Rather, the docket clearly indicates that this order pertained to

plaintiffs’ April 30, 2010 request that they be given until June 17, 2010, to file their brief

in opposition. The record also clearly indicates that on June 10, 2010, the trial court

informed the parties that plaintiffs had until July 2, 2010, to submit their brief in

opposition to Thermafab’s motion for summary judgment, and that “No further

extensions will be granted on any date.”

{¶46} As of the date of the trial court’s ruling on Thermafab’s motion for summary

judgment, the case had been pending for 23 months and the motion had been pending for

126 days. Under Loc.R. 11(I), plaintiffs were to respond to the motion within 30 days,

and they made no attempt to do so. Plaintiffs failed to file a brief in opposition to this

motion for summary judgment, and plaintiffs failed to demonstrate the existence of a

single genuine issue of fact for trial.

{¶47} The first and third assignments of error are without merit.

{¶48} Finally, with regard to the trial court’s order awarding summary judgment to

Thermafab on the claims for claims for conversion, an accounting, breach of contract, and
breach of fiduciary duties, we observe that after this court returned the case to the trial

court for disposition of these claims in Conway, 8th Dist. No. 95990, Thermafab

submitted evidentiary materials that established it was entitled to judgment as a matter of

law on these remaining claims. Plaintiffs filed no brief in opposition to this motion for

summary judgment, however. Instead, they once again employed their apparent strategy

of seeking another discovery continuance, even though the trial court had already advised

the parties in its October 21, 2010 opinion that, “any further Court action would be held

in abeyance as to whether or not defendants would be compelled to provide specific

information not disclosed,” and had also concluded that plaintiffs had shown “a complete

disregard for the judicial system and * * * deliberate attempt to manipulate the

proceedings.”

{¶49} The second assignment of error is therefore without merit.

{¶50} Plaintiffs’ first, second, third, and fifth assignments of error are overruled.

{¶51} For their fourth assignment of error, plaintiffs state:

The trial court committed reversible error when it denied the Appellants’
Civ.R. 60(B)motion for relief from judgment.

{¶52} A motion for relief from judgment under Civ.R. 60(B) must be directed to a

“final order.” Civ.R. 60(B). Interlocutory orders are non-final orders that are not

subject to appeal. Bodo v. Nationwide Ins. Co., 75 Ohio App.3d 499, 504-505, 599

N.E.2d 844 (11th Dist.1991); Lee v. Joseph Horne Co., Inc., 99 Ohio App.3d 319, 323,

650 N.E.2d 530 (8th Dist.1995).
 {¶53} In this matter, plaintiffs filed the motion for relief from the trial court’s

August 20, 2010 judgment that granted Thermafab summary judgment only as to the

defamation, invasion of privacy, false-light invasion of privacy, and intentional infliction

of emotional distress. As such, and as noted in Conway, 8th Dist. No. 95990, this order

was not a final and appealable order because there were unresolved claims for relief.

Accordingly, plaintiffs’ motion for relief pursuant to Civ.R. 60(B) was not directed

toward a final order so it was not well taken. In any event, after this court remanded the

appeal in Conway, 8th Dist. No. 95731, for a hearing on this motion, plaintiffs presented

no witnesses at the hearing held on October 18, 2010. The trial court noted:

[O]nly oral argument with reference to affidavits [was] presented.
Plaintiffs failed to produce any witnesses to offer testimony to the Court,
nor allow cross-examination by defendants. * * * Notably, even Mr.
Conway instructed [his counsel] to file a substantive answer to the summary
judgment motion.

{¶54} The fourth assignment of error is without merit.

{¶55} In accordance with the foregoing, the June 3, 2010 order of the trial court

that awarded Search Masters summary judgment is affirmed. The August 20, 2010 order

of the trial court that awarded summary judgment to Thermafab on the first four claims

for relief is affirmed. The February 13, 2012 order of the trial court that awarded

summary judgment to Thermafab on its remaining claims for relief is affirmed. The

October 21, 2010 order that denied plaintiffs’ motion for relief from judgment is

affirmed.

It is ordered that appellees recover from appellants costs herein taxed.
 The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR