Drogell v. Westfield Group

[Cite as Drogell v. Westfield Group, 2013-Ohio-5262.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )

MARK DROGELL C.A. No. 11CA0011-M

Appellant

v. APPEAL FROM JUDGMENT
ENTERED IN THE
WESTFIELD GROUP COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellee CASE No. 09CIV0630

DECISION AND JOURNAL ENTRY

Dated: December 2, 2013

BELFANCE, Judge.

{¶1} Mark Drogell appeals the award of summary judgment from Medina County

Court of Common Pleas. For the reasons set forth below, we affirm.

I.

{¶2} Mr. Drogell worked for Ohio Farmers Insurance Company for approximately 34

years. In 1997, Mr. Drogell was diagnosed with multiple sclerosis. In 2005, after being denied a

promotion, Mr. Drogell went on short-term disability leave and eventually retired early in 2008.

Prior to his retirement, Mr. Drogell filed a complaint against Westfield Group but eventually

dismissed Westfield.

{¶3} Mr. Drogell filed a second complaint against Westfield,1 alleging that he had been

a victim of disability and age discrimination, that he had been constructively discharged in

1
Appellee argued below that Westfield Group was not a proper party because it was
merely a trade name for Ohio Farmer’s Insurance, and, therefore, was not Mr. Drogell’s
employer. However, there is no evidence in the record on this point, and the trial court never
 2

violation of public policy, and that Westfield Group had engaged in the intentional infliction of

emotional distress against him. Westfield Group moved for summary judgment, and Mr. Drogell

moved for an extension of time to file his response, which the trial court granted. On September

27, 2011, three days after Mr. Drogell’s materials and brief were originally due, Mr. Drogell

filed his brief along with a “rough draft” of the deposition of Keith Vanover, Mr. Drogell’s flight

instructor, which was not notarized.

{¶4} The trial court determined that the deposition of Mr. Vanover was untimely filed

because it had only granted Mr. Drogell an extension of time to file his motion in opposition and

not an extension of time to file evidence in support of that motion, and the trial court declined to

consider Mr. Vanover’s deposition. The trial court originally awarded partial summary judgment

to Westfield, but, two months later, the trial court sua sponte reconsidered its decision and

awarded Westfield Group summary judgment on all of Mr. Drogell’s claims.

{¶5} Mr. Drogell appealed and raised a single assignment of error for our

consideration. However, his attorney withdrew, and Mr. Drogell was granted leave to file a

supplemental brief once he obtained new counsel, which he did. Mr. Drogell’s supplemental

brief raises one assignment of error. For ease of discussion, we address Mr. Drogell’s

supplemental assignment of error first.

II.

SUPPLEMENTAL ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DISALLOWED
THE DEPOSITION TESTIMONY OF KEITH E. VANOVER WHEN IT
CLEARLY CONTRADICTED THE TESTIMONY OF DR. TIMOTHY J.

ruled on this issue. Thus, although Appellee makes this argument again on appeal, we decline to
address it in the first instance. For the purposes of this appeal, Appellee will be referred to as
Westfield.
 3

CARRABINE AND CREATED A FACTUAL DISPUTE AS TO
APPELLANT’S HANDICAP CLAIM.

{¶6} Mr. Drogell argues that the trial court abused its discretion when it declined to

consider the deposition of Mr. Vanover. While we agree that, under the circumstances, the trial

court should not have excluded the deposition based on Civ.R. 32, we conclude that the error

was harmless because the deposition at issue does not comply with Civ.R. 30(F)(1)(a).

{¶7} The magistrate set September 27, 2010, as the date for the non-oral hearing on

Westfield’s motion for summary judgment and ordered that Mr. Drogell’s brief and evidence

should be filed by September 24, 2010. Mr. Drogell moved for an extension until September 27,

2010, to file his “response[,]” which the trial court granted. On September 27, 2010, Mr. Drogell

filed his motion in opposition of summary judgment, an affidavit signed by him, and a “rough

draft” of Mr. Vanover’s deposition that was not notarized. The trial court declined to consider

Mr. Vanover’s deposition because it determined that the deposition was untimely filed pursuant

to Civ.R. 32 because it had only given Mr. Drogell an extension to file his “response” to

Westfield’s motion for summary judgment but “did not * * * extend the time for filing

depositions.” See Civ.R. 32(A) (“Every deposition intended to be presented as evidence must be

filed at least one day before the day of trial or hearing unless for good cause shown the court

permits a later filing.”).

{¶8} We find the trial court’s interpretation of its order troubling. Under the

circumstances, the order was ambiguous as it mirrored the request in Mr. Drogell’s motion for an

extension of time to file his “response[.]” A “response” to a motion for summary judgment

could theoretically include both the brief and the Civ.R. 56 evidence relied on by the brief.

Given that Mr. Drogell attempted to file Mr. Vanover’s deposition on September 27, 2010, with

his brief in opposition, it would certainly appear that he believed the trial court’s extension
 4

included the filing of depositions. Thus, under the circumstances, the trial court should not have

disregarded the deposition on the basis of Civ.R. 32.

{¶9} Nevertheless, we cannot sustain Mr. Drogell’s supplemental assignment of error.

The document Mr. Drogell filed that purports to be Mr. Vanover’s deposition is not certified by

the officer who transcribed the deposition. See Civ.R. 30(F)(1)(a) (“Upon request of any party or

order of the court, the officer shall transcribe the deposition. * * * The officer shall certify on the

transcribed deposition that the witness was fully sworn or affirmed by the officer and that the

transcribed deposition is a true record of the testimony given by the witness.”). The deposition

in this case was not bound and was stamped “rough draft[,]” and the certification page is

unsigned. Given that the transcription of the deposition did not comply with the Civil Rules, the

trial court was under no obligation to consider it. See State ex rel. Spencer v. East Liverpool

Planning Comm., 80 Ohio St.3d 297, 301 (1997) (noting that, while a court may consider

evidence other than that listed in Civ.R. 56 if there is no objection, it is not required to do so).

{¶10} Thus, we cannot conclude that the trial court’s refusal to consider Mr. Vanover’s

deposition constitutes reversible error in this case. See Civ.R. 61. Accordingly, his

supplemental assignment of error is overruled.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF APPELLEE WHEN [A] GENUINE ISSUE OF MATERIAL FACT
EXISTED REGARDING APPELLANT’S CLAIMS.

{¶11} Mr. Drogell argues that the trial court erred in granting summary judgment in

favor of Westfield. We disagree.

{¶12} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court,
 5

viewing the facts of the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party.” Garner v. Robart, 9th Dist. Summit No. 25427,

2011-Ohio-1519, ¶ 8.

{¶13} Pursuant to Civ.R. 56(C), summary judgment is appropriate when:

(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 (1977). To succeed on a summary

judgment motion, the movant bears the initial burden of demonstrating that there are no genuine

issues of material fact concerning an essential element of the opponent’s case. Dresher v. Burt,

75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party “‘must

set forth specific facts showing that there is a genuine issue for trial.’” Id. at 293, quoting Civ.R.

56(E).

{¶14} We initially note that Mr. Drogell does not challenge the trial court’s award of

summary judgment on his claim of violation of public policy, and, therefore, we do not address

it. See App.R. 16(A)(7); Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934,

*8 (May 6, 1998). Mr. Drogell also makes very limited arguments regarding his claims for

disability discrimination, age discrimination, and intentional infliction of emotional distress, and

we confine our analysis accordingly. See id.

Disability Discrimination

{¶15} Mr. Drogell alleged in his complaint that Westfield had engaged in disability

discrimination in violation of R.C. Chapter 4112. R.C. 4112.02(A) provides that it is “an

unlawful discriminatory practice[ f]or any employer, because of the * * * disability * * * of any
 6

person, to discharge without just cause * * * or otherwise to discriminate against that person with

respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or

indirectly related to employment.” The ultimate issue in cases alleging employment

discrimination under R.C. Chapter 4112 is whether the adverse employment action was

motivated, at least in part, by discriminatory intent. See Columbus Civ. Serv. Comm. v.

McGlone, 82 Ohio St.3d 569, 571 (1998). A plaintiff may attempt to prove discriminatory intent

through direct evidence or indirect evidence. See Williams v. Akron, 107 Ohio St.3d 203, 2005-

Ohio-6268, ¶ 9-11 (“Because of the difficulty of proving a discrimination claim, especially

where there is no direct evidence of discriminatory motive, the Supreme Court created an

analytical framework to address ‘the order and allocation of proof’ in such cases. McDonnell

Douglas Corp. v. Green[], 411 U.S. 792, 800 * * * [(1973)].”). See also Cittadini v. Southwest

Gen. Health Sys., 8th Dist. Cuyahoga No. 96254, 2011-Ohio-6464, ¶ 15. When relying upon

indirect evidence to prove discriminatory intent, courts rely upon a burden-shifting paradigm

articulated in McDonnell Douglas. Williams at ¶ 9. See also McFee v. Nursing Care Mgt. of

Am., Inc., 126 Ohio St.3d 183, 2010-Ohio-2744, ¶ 35 (The McDonnell Douglas analysis should

be involved in cases where indirect evidence of sex discrimination is alleged); Greer-Burger v.

Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, ¶ 13-14 (Courts should apply the burden-shifting

framework of McDonnell Douglas in cases of retaliatory discharge); Coryell v. Bank One Trust

Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723, ¶ 8-9 (Courts should apply the McDonnell

Douglas paradigm in age-discrimination cases.). Under this paradigm, the plaintiff must first

establish a “prima facie case” which in turn shifts the burden to the employer to articulate a

legitimate non-discriminatory reason for the adverse employment action. See, e.g., Monette v.

Electronic Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir.1996) (“If the plaintiff seeks to establish
 7

his or her case indirectly, without direct proof of discrimination, the plaintiff may establish a

prima facie case of discrimination by showing that: 1) he or she is disabled; 2) otherwise

qualified for the position, with or without reasonable accommodation; 3) suffered an adverse

employment decision; 4) the employer knew or had reason to know of the plaintiff’s disability;

and 5) the position remained open while the employer sought other applicants or the disabled

individual was replaced.”) (Italics sic.).2 Assuming this occurs, the burden shifts back to the

employee to establish that the employer’s proffered explanation is a mere pretext for unlawful

discrimination. Although the McDonnell Douglas paradigm may vary slightly in light of the

type of discrimination at issue, the paradigm requires the employee to provide evidence that he

or she is otherwise qualified for the position with or without reasonable accommodation.

{¶16} The issue in this case involves Mr. Drogell’s challenge to the trial court’s

determination that there was no material dispute of fact as to whether he was qualified for his

position with or without reasonable accommodation. As noted above, Mr. Drogell was

diagnosed with MS in 1997. He continued to work at Westfield until taking early retirement in

2008. During his deposition, Mr. Drogell stated that in 2005, he applied for short-term disability

leave which began on July 11, 2005. He then applied for long-term disability which commenced

in January 2006. In July 2005, Mr. Drogell applied for SSDI. In addition, he applied for an

early distribution from his 401(k). In connection with his application for the early 401(k)

distribution, Mr. Drogell stated that he agreed that as of July 11, 2005, he had severe limitations

in functional capacity and was incapable of minimal sedentary activities. He also agreed that he

was incapable of performing work of any kind indefinitely and that he was not a suitable

2
In Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir.2012), the Sixth
Circuit modified the test set for in Monette so that a plaintiff need no longer show that he or she
suffered an adverse employment action solely due to his or her disability. Lewis at 317-319.
 8

candidate for rehabilitation services. Finally, he also agreed that there were no job modifications

that would enable him to work with his impairment. In light of the above testimony, the trial

court determined that there was no material dispute of fact that Mr. Drogell was not qualified for

the position he held at Westfield and, therefore, Westfield was entitled to summary judgment on

Mr. Drogell’s disability discrimination claim.

{¶17} Mr. Drogell argues that the trial court’s determination was incorrect, pointing to

his affidavit and to the deposition of Mr. Vanover for support. However, the trial court did not

consider the deposition of Mr. Vanover, and, as discussed above, given that the deposition did

not comply with Civ.R. 32, it was not required to. See Spencer, 80 Ohio St.3d at 301. While the

dissent concludes that this case should be remanded so that the trial court could exercise its

discretion in the first instance as whether to consider Mr. Vanover’s testimony, we note that the

trial court implicitly indicated in its judgment entry that it had looked at Mr. Vanover’s

deposition, stating that it “d[id] not believe that if it had considered the deposition that it would

have reached a different result.” We agree with the trial court’s conclusion. Mr. Vanover

testified in his deposition that Mr. Drogell took classes to learn how to pilot an airplane and that

Mr. Drogell had piloted a plane while Mr. Vanover sat next to him in the cockpit in 2008. It is

unclear how Mr. Vanover’s testimony that Mr. Drogell was able to participate in a leisure

activity during a period when he was on disability leave and not actively working contradicted

Mr. Drogell’s own admissions that he was no longer capable of performing his job. Thus, even

if Mr. Vanover’s deposition were considered, there would still be no material dispute of fact.

{¶18} In his affidavit, Mr. Drogell averred that he can “walk, talk, see hear, dress

[him]self, feed [him]self, and drive an automobile.” He also averred in his affidavit that “the

information contained in the [Social Security Disability] application states that [he is] completely
 9

disabled from any employment[]” and that “the [Social Security Disability] application was

completed solely on the advice and information provided by [his] doctor.” However, the

averments in Mr. Drogell’s affidavit are insufficient to fulfill his reciprocal Dresher burden with

respect to demonstrating the existence of a material dispute of fact. Dresher, 75 Ohio St.3d at

293. Even assuming that the information on Mr. Drogell’s Social Security Disability application

was untrue,3 he testified in his deposition that he applied for disability leave in July 2005 because

he believed he could no longer perform his job and that he agreed with his doctor’s statements on

the forms submitted to receive a distribution from his 401(K) that he was incapable of

performing any job with or without an accommodation. Given these facts, Mr. Drogell’s

averment that he can perform essential functions of daily life do not create a material dispute of

fact regarding his ability to perform the essential functions of his job, or any job, with or without

an accommodation. Furthermore, Mr. Drogell stated his doctor never told him to apply for

Social Security Disability, and it is well established that “an affidavit of a party opposing

summary judgment that contradicts former deposition testimony of that party may not, without

sufficient explanation, create a genuine issue of material fact to defeat a motion for summary

judgment.” Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 28. Therefore, we cannot

conclude that, to the extent Mr. Drogell’s affidavit contradicts his deposition testimony, it creates

a material dispute of fact about his ability to perform his job duties at Westfield.

3
The Supreme Court of the United States has noted that claims under the Americans with
Disability Act and the Social Security Disability Insurance program “can comfortably exist side
by side.” Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795, 803 (1999). “[W]hen the SSA
determines whether an individual is disabled for SSDI purposes, it does not take the possibility
of ‘reasonable accommodation’ into account, nor need an applicant refer to the possibility of
reasonable accommodation when she applies for SSDI.” (Emphasis sic.) Id.
 10

{¶19} Thus, under the circumstances, we conclude that there is no material dispute of

fact that Mr. Drogell was not qualified for his position because even he acknowledged that he

could no longer perform it with or without accommodation. Based on Mr. Drogell’s very limited

appellate arguments, we overrule his assignment of error as it applies to the award of summary

judgment on his disability discrimination claim.

Age Discrimination

{¶20} R.C. 4112.02(A) provides that it is “an unlawful discriminatory practice[ f]or any

employer, because of the * * * age * * * of any person, to discharge without just cause * * * or

otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or

privileges of employment, or any matter directly or indirectly related to employment.”

Absent direct evidence of age discrimination, in order to establish a prima facie
case of a violation of R.C. 4112.14(A) in an employment discharge action, a
plaintiff-employee must demonstrate that he or she (1) was a member of the
statutorily protected class, (2) was discharged, (3) was qualified for the position,
and (4) was replaced by, or the discharge permitted the retention of, a person of
substantially younger age.

Coryell, 101 Ohio St.3d 175, 2004-Ohio-723, at paragraph one of the syllabus. “This test is a

descendant of McDonnell Douglas Corp. v. Green[], 411 U.S. 792 * * * [(1973))], in which the

United States Supreme Court promulgated an analytical framework for claims of race

discrimination.” Id. at ¶ 9.

{¶21} With respect to his age discrimination claim, Mr. Drogell did not identify any

direct evidence of discriminatory intent based upon his age in his complaint thereby necessitating

employment of the McDonnell Douglas burden-shifting framework. See Coryell at ¶ 9. As

with his disability discrimination claim, the trial court determined that Westfield was entitled to

summary judgment because there was no dispute of fact as to whether Mr. Drogell was qualified

for his position. The trial court again relied upon the deposition testimony detailed above. In his
 11

merit brief, Mr. Drogell relies upon his affidavit to establish a genuine issue of material fact and

advances the same argument as he makes regarding his disability claim. However, as discussed

above, Mr. Drogell’s affidavit is insufficient to create a material dispute of fact of this issue

insofar as it contradicts his deposition testimony. See Byrd, 110 Ohio St.3d 24, 2006-Ohio-3455,

at ¶ 28. However, to the extent that his affidavit does not contradict his deposition testimony, it

was nonetheless insufficient to demonstrate a dispute of material fact as to whether he was

qualified for his position. As noted above, the fact that Mr. Drogell could perform certain daily

functions of life was insufficient to create a material dispute of fact in light of his statements that

he could not perform the functions of his job. 4 Accordingly, based on the limited arguments

made on appeal, Mr. Drogell’s assignment of error is overruled to the extent it challenges the

award of summary judgment on his claim of age discrimination.

Intentional Infliction of Emotional Distress

{¶22} Mr. Drogell argues that the trial court erred in granting summary judgment to

Westfield on his claim for intentional infliction of emotional distress because “[Westfield]’s

constructive discharge of [Mr. Drogell] came without any warning * * *.” “In a case for

intentional infliction of emotional distress, a plaintiff must prove (1) that the defendant intended

to cause the plaintiff serious emotional distress, (2) that the defendant’s conduct was extreme and

outrageous, and (3) that the defendant’s conduct was the proximate cause of plaintiff’s serious

emotional distress.” Phung v. Waste Mgt., Inc., 71 Ohio St.3d 408, 410 (1994).

“* * * It has not been enough that the defendant has acted with an intent which is
tortious or even criminal, or that he has intended to inflict emotional distress, or
even that his conduct has been characterized by ‘malice,’ or a degree of
aggravation which would entitle the plaintiff to punitive damages for another tort.

4
We do not mean to say that this type of evidence is immaterial to every employment
discrimination case; however, in the context of this case, it was insufficient to demonstrate a
dispute of material fact.
 12

Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the recitation of the facts to an
average member of the community would arouse his resentment against the actor,
and lead him to exclaim, ‘Outrageous!’”

Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousement, & Helpers of Am, 6 Ohio

St.3d 369, 374-375 (1983) (abrogated on other grounds by Welling v. Weinfeld, 113 Ohio St.3d

464, 2007-Ohio-2451), quoting Restatement of the Law 2d, Torts, Section 46, comment d

(1965).

{¶23} In its motion for summary judgment, Westfield argued that there was no dispute

of material fact as to whether it had engaged in extreme and outrageous conduct against Mr.

Drogell and that he had not pointed to any evidence of extreme and outrageous conduct.

Westfield further pointed to the accommodations it provided Mr. Drogell as evidence that its

conduct toward Mr. Drogell was appropriate. These accommodations included providing him

with a special chair, moving his workstation closer to the restroom, providing him with a note

taking device and transcripts of meetings with his supervisor, and allowing Mr. Drogell to work

from home. Westfield also pointed to Mr. Drogell’s concession in his deposition that he had

chosen to retire early and that he had been on disability leave for three years prior to his

retirement, thus suggesting that Mr. Drogell’s motive for retiring had nothing to do with extreme

and outrageous conduct on Westfield’s part. Westfield essentially argued that, in light of the

undisputed evidence that they accommodated Mr. Drogell’s disability and that they did not force

Mr. Drogell to retire, there was no conduct by Westfield that would constitute extreme and

outrageous conduct. Therefore, it argued, Mr. Drogell’s claim of intentional infliction of

emotional distress must fail as a matter of law.
 13

{¶24} Mr. Drogell argued in his response to Westfield’s motion for summary judgment

that Westfield’s “constructive discharge of [him] came without any warning and caused [him] to

experience loss of sleep, extreme nervousness and severe emotional distress. Clearly,

[Westfield]’s constructive discharge of [Mr. Drogell] after 34 years of service constitutes the

type of severe and outrageous conduct enunciated in Yeager.” We cannot conclude that Mr.

Drogell met his reciprocal Dresher burden because he did not point to any evidence in the record

demonstrating that there was a material dispute of fact. The closest he came in his opposition to

summary judgment was his statement that he “was forced to take disability leave from

employment by [Westfield].” However, he does not point to specific actions taken by Westfield

that forced him to take the disability leave, nor does he point to conduct on behalf of Westfield

that, even when viewed in the light most favorable to him, would constitute outrageous or

egregious conduct. Thus, the record reflects that Mr. Drogell did not meet his reciprocal Dresher

burden by pointing to specific facts in the record that demonstrate a genuine dispute of material

fact as to whether Westfield engaged in outrageous or egregious conduct against him.

{¶25} Likewise in his merit brief on appeal, Mr. Drogell has not pointed to specific facts

in the record that demonstrate that the trial court erred in its determination that there was an

absence of a genuine dispute of material fact as to whether Westfield engaged in outrageous or

egregious conduct against him. Accordingly, we overrule his assignment of error with regard to

his claim of intentional infliction of emotional distress.

III.

{¶26} Mr. Drogell’s assignments of error are overruled. The Medina County Court of

Common Pleas’ award of summary judgment to Westfield is affirmed.

Judgment affirmed.
 14

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

EVE V. BELFANCE
FOR THE COURT

MOORE, P. J.
CONCURS.

CARR, J.
DISSENTING.

{¶27} I respectfully dissent. I agree with the majority’s conclusion that the trial court

erred by disregarding Mr. Vanover’s deposition on the basis of Civ.R. 32. However, while there

were issues with the certification of the deposition pursuant to Civ.R. 30(F)(1)(a), this Court has

consistently held that a trial court has discretion to consider improper Civ.R. 56 evidence in the

absence of an objection to that evidence by the opposing party. See Stoll v. Gardner, 182 Ohio
 15

App.3d 214, 2009-Ohio-1865, ¶ 24 (9th Dist.); Wallner v. Thorne, 189 Ohio App.3d 161, 2010-

Ohio-2146, ¶ 18 (9th Dist.); Wayne Sav. Community Bank v. Gardner, 9th Dist. Wayne No.

08CA0016, 2008-Ohio-5926, ¶ 17. Here, because the trial court improperly concluded that the

deposition was untimely filed, it did not have an opportunity to exercise that discretion. I would

sustain Mr. Drogell’s supplemental assignment of error, and remand this matter to give the trial

court an opportunity to consider Mr. Vanover’s deposition.

APPEARANCES:

WESLEY A. JOHNSTON, Attorney at Law, for Appellant.

MICHELLE PIERCE STRONCZER, Attorney at Law, for Appellee.