Bay v. Brentlinger Ents.

[Cite as Bay v. Brentlinger Ents., 2016-Ohio-5115.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Justin R. Bay, :

Plaintiff-Appellant, :
No. 15AP-1156
v. : (C.P.C. No. 14CV-12333)

Brentlinger Enterprises, : (REGULAR CALENDAR)

Defendant-Appellee. :

D E C I S I O N

Rendered on July 26, 2016

On brief: Law Offices of Russell A. Kelm, Russell A. Kelm,
and Colleen M. Koehler, for appellant. Argued: Russell A.
Kelm.

On brief: Vorys, Sater, Seymour and Pease, LLP,
William G. Porter, II, Tyler B. Pensyl, and Kara M.
Singleton, for appellee. Argued: William G. Porter, II.

APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
{¶ 1} Plaintiff-appellant, Justin R. Bay, appeals a final judgment of the Franklin
County Court of Common Pleas entered on December 4, 2015 based upon a decision
granting summary judgment to defendant-appellee, Brentlinger Enterprises, and a
decision denying a motion to reconsider the issue of summary judgment. On de novo
review, viewing the evidence most favorably to Bay and drawing all reasonable inferences
in his favor, Bay cannot sustain his fraud allegation against Brentlinger Enterprises, and
we affirm the judgment of the Franklin County Court of Common Pleas.
I. FACTS AND PROCEDURAL POSTURE
{¶ 2} Bay was an employee of Brentlinger Enterprises from November 2012 to
October 27, 2014. Initially, he was a salesperson with the Audi dealership of Midwestern
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No. 15AP-1156

Auto Group ("MAG") which is part of Brentlinger Enterprises.1 However, after
approximately one month, Bay became "Director of Business Development" for MAG.
(Oct. 5, 2015 Bay Dep. at 25-26.) As director, he earned roughly $6,000 (and later
$8,000) per month. He was an "at will" employee and understood that he could be fired
for any reason or no reason, and correspondingly, he could quit at any time.
{¶ 3} Bay had no formal employment agreement. However, Bay did sign a
number of agreements upon accepting employment with MAG. One agreement, entitled
"Confidentiality Agreement," contained relevant terms as follows:

The Employee acknowledges that [confidential and
proprietary] information obtained in the course of his or her
employment with the Company is and will remain the
property of the Company. The Employee further
acknowledges that his or her employment is for no fixed or
definite period of time, and that the Company may terminate
Employee's employment at any time with or without cause
and with or without notice, at the option of the Company.
Likewise, Employee may resign his or her employment at any
time.

(Ex. 1 at 1, Bay Dep.) The agreement also forbade Bay to "furnish[] or disclos[e]" or
"copy[] for use other than for Company purposes, any confidential or proprietary
information of the Company or any of its clients, including but not limited to * * * trade
secrets, plans or methods of doing business * * * whether written or not, which Employee
receives, acquires, learns, prepares, or helps to prepare in connection with his or her
employment." Id. at 1-2. Another agreement signed by Bay was entitled, "Computer and
Communications Systems Policy," and it included a list of prohibited activities such as
"[u]sing MAG's Systems for non-MAG-related business or for moonlighting (personal
income-generating activities)." (Ex. 2 at 3, Bay Dep.)
{¶ 4} The events that ultimately culminated in Bay's employment termination
from MAG began with a request from Mark Brentlinger, principal of MAG, in early to
mid-2013 to a member of the MAG design team to create a graph or display for use on the
company website to show payments and car models available at certain payment levels.

1To avoid confusion between Brentlinger Enterprises and Mark Brentlinger and because many of the
documents in the record do so, we shall hereafter refer to Brentlinger Enterprises as MAG.
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No. 15AP-1156

In late 2013 or early 2014, Bay spoke with Brentlinger and explained that he had an idea
that would complement Brentlinger's idea, a widget on the website that would quote
payments, provide financing options and match customers with cars in MAG's inventory.
Brentlinger told him to look into it to see if it was feasible.
{¶ 5} In the spring of 2014, Bay had another conversation with Brentlinger and
explained that Market Scan (the vendor that provided MAG with payment calculating or
"desking" software) had provided MAG with its software platform that could be used to
facilitate the development and operation of a commercially viable tool of the sort Bay had
described to Brentlinger. (Bay Dep. at 67-68.) During this conversation, Bay suggested
that an interactive web-based payment calculator/car-buying tool might be patentable.
Bay relayed similar information in an e-mail on March 19, 2014 to Brentlinger, and in that
e-mail, he referred to the "payment matrix" as "your idea" when addressing Brentlinger.
(Ex. 3 at 1, Bay Dep.)
{¶ 6} A few weeks later, on May 1, 2014, Bay again wrote to Brentlinger, this time
characterizing the widget as being Bay's idea to make Brentlinger's underlying concept a
reality. Like the communication before it, this e-mail explained that Market Scan had
provided MAG with a digital platform. However, this e-mail also mentioned the need for
further work using a programmer and an I.P. attorney. Although the e-mail did not
mention it, Bay explained in his deposition that around this time, he reached out to a
patent attorney and was thinking that the application would list him as the sole inventor.
However, Bay was working (at least some of the time) on the project during work hours at
MAG, using his MAG computer, and the evidence shows that he had assumed the patent
would eventually belong to MAG, at least in part.
{¶ 7} More than two months later, on July 17, 2014, Bay and Brentlinger engaged
in the following e-mail exchange:

[Brentlinger],

We are past the eleventh hour on our opportunity with Market
Scan. Please let me know if this something you would like to
pursue...

This is the online desking tool you can have propriety rights,
thanks to me. :-) I get a cut! $ :-)
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No. 15AP-1156

Need to know fast!

Best regards,

[Bay]

***

I have no memory of what this is or that I was ever in a
conversation about market scan. So I need allot more
information than this to make a decision.

[]Brentlinger

***

This is the payment matrix for our website. However market
scan gave us their platform in hopes of making a commercially
viable product.

We have all the technology in line we need a programmer to
tie some things together and protect the product with a
patent.

Does this ring a bell?

Let me know...

***

Ughh

Brain dead, I am brain dead....

Hell yes I want this, how much????

***

labor for programmer $5,000-$10,000

Patent $3,500

These are estimates could be less could be more.

***

OK...
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No. 15AP-1156

Get started, do we get some kind of ownership if I am paying
for a patent?

***

Great I will get started! You will own rights to the patent with
me. :-)

(Ex. 6 at 1-3, Bay Dep.) Immediately following this e-mail chain, Barry Lester, General
Manager of MAG, wrote to Brentlinger to confirm:

I talked with [Bay]. He said you gave him the green light on
market scan?

He said cost would be $5000.00 to $10,000.00 for a
programmer and $3500.00 for the patten

Just confirming its a go.

***

Yes as long as it works as promised and we own the system for
the expense...

(Ex. 7 at 1-2, Bay Dep.) Lester forwarded the chain to Bay who responded, "Great! Very
excited!!" Id. at 1.
{¶ 8} In the time following the e-mail exchanges on July 17, 2014, Bay obtained a
rough draft of a provisional patent application, obtained an estimate from a programming
firm, Oxiem, to work on the product, and obtained a draft of a developer agreement to
memorialize the relationship with the programming firm. Although Bay shared each of
these documents with Sean McCarthy, Chief Financial Officer of MAG, and Lester, he did
not specifically point out to them that Bay, and not MAG, was listed as party to the
developer agreement and as inventor of the patent.
{¶ 9} Subsequently, on the evening of September 15, 2014, Bay wrote an e-mail to
Brentlinger enclosing an e-mail chain. The e-mail chain included an article detailing a
similar project undertaken by another company in the business of car sales and also set
forth communications involving the programming firm, Oxiem, in which Oxiem
apparently insisted that it would own whatever code it created. In light of these potential
roadblocks, Bay wrote to Brentlinger:
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No. 15AP-1156

Sorry to disturb at a late hour.

This shit is getting real and I need your help.

I'm going to fire Oxiem if they don't agree to our terms.

We need to start dealing with a big development company!

Can we talk tomorrow?

(Ex. 14 at 1-2, Bay Dep.) Bay also e-mailed another message to Brentlinger the same
evening saying, "[o]r let me know if I'm stupid and should be fired for being stupid!!!"
Id. at 1. In light of Bay's comments and attached e-mail chain, Brentlinger replied:

What is all of this??

Explain it in a paragraph and not in an email string..

Id. To which Bay responded:

This is in regards to the online desking tool project I've been
working on. Oxiem is working on this project but they want to
own the code they develop. So we will need a new company to
do the program work if they don't agree to our terms. Then I
find an older article in July from Automotive news stating that
Autonation is investing $100,000,000 in doing exactly what I
am working on...giving the client the ability to buy a car
online. I became emotional when I saw this and that is what
spurred my email. When you are available to talk I have a lot
to go over with you.

Id.
{¶ 10} The next morning, on September 16, 2014, Lester called Bay into his office
and asked him if he was looking for personal monetary gain from the project. Bay
indicated that he was expecting some sort of bonus, raise, or profit sharing in the event
that the project were to ultimately prove a success. Lester informed Bay, that at MAG,
employees do not work on projects for individual gain and told him he was fired. Bay
then went to speak to McCarthy to tell him what had happened. McCarthy promised to
speak to Lester and calm him down.
{¶ 11} Later that day, Bay was called into a meeting with Lester, McCarthy, and
Brentlinger (who participated by telephone). Brentlinger was very angry with Bay,
seemed to have forgotten the details of the project, and was very upset that Bay would be
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No. 15AP-1156

listed as the inventor after MAG had paid for the costs of the project so far. When
Brentlinger began to berate Bay using profanity, Bay left the meeting.
{¶ 12} That evening, Bay sent an e-mail to McCarthy which included a forwarded
e-mail from the attorney who had been drafting the patent documents:

I do not wish to cause any issues. I'm trying to make MAG a
better dealership by providing our clients with alternative
options to buy cars. I feel like [Lester] misconstrued the
situation. I am obeying the law and being an ethical person.
Please stand up for me.

I will give MAG whatever they want and I wish to be fully
employed by MAG.

***

[Bay] –

Hope you have worked things out.

Just so you are aware, there can be more than 1 inventor. If
[Brentlinger] thought of steps 1-4 (for example) of claim 1 and
you thought of the rest, then you are both inventors.

Naming people who are not true (or not naming all) inventors
invalidates the patent.

[Patent Attorney]

(Ex. 16 at 1, Bay Dep.)
{¶ 13} The next day, September 17, 2014, Bay met with Lester and McCarthy to
attempt to explain the situation. During that meeting, it was agreed that MAG would own
the patent, that Bay and Brentlinger would be listed as inventors, that Bay was not fired,
and that they would all try to put the unpleasantness from the day before behind them.
The day after that, September 18, 2014, Bay and McCarthy shared a telephone call with
the patent attorney and explained that MAG should be the owner of the patent and that
Brentlinger should also be listed as the inventor. Bay testified that he signed a set of
assignment documents on September 18, 2014 pursuant to this conversation. But the
record does not contain signed copies of such materials.
{¶ 14} The record shows nothing more discussed on the subject until October 24,
2014, when McCarthy asked Bay to sign an assignment of any financial rights in the
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No. 15AP-1156

potential patent to MAG for $1. When Bay asked if he had to sign, McCarthy said, "[y]ou
like your job, don't you?" (Bay Dep. at 205.) Bay signed without asking for further
clarification. Bay also did not discuss his term of employment with McCarthy and
understood that he remained an "at will" employee even after this conversation.
Moreover, Bay was under the impression that by signing, he was just doing something
that he had already done, that is, make the potential patent the property of MAG.
{¶ 15} October 24, 2014, was a Friday. The following Monday, October 27, 2014,
Lester terminated Bay's employment by explaining that Bay's position was being
eliminated. Lester did not discuss Bay's performance or mention any reason for the
termination beyond the fact that Bay's position was being eliminated and his services
would no longer be required. However, there is evidence that Lester had intended to
terminate Bay ever since September 2013 and that he reinstated Bay after the
September 16, 2013 meeting in order to obtain passwords to various computer programs
used at MAG. (Oct. 23, 2015 Bay Aff. at ¶ 5, Memo in Opp. to Summ. Jgmt.)2 Bay never
received the $1 contemplated in the assignment agreement.
{¶ 16} On November 25, 2014, Bay sued Brentlinger Enterprises (and therefore
MAG) for fraud and fraud in the inducement. Bay's theory as set forth in the complaint,
the affidavit, and explained at Bay's deposition, was that McCarthy's question, "[y]ou like
your job, don't you?" fraudulently induced him to sign over his rights to the potential
patent in exchange for keeping his job despite the fact that MAG intended to fire him
anyway. (Bay Dep. at 205; Bay Aff. at ¶ 6-7.) McCarthy testified in his deposition that he
had no knowledge of whether Lester intended to fire Bay and did not even learn of
Lester's intention until after Bay had been terminated because McCarthy was dealing with
a family health issue.3
{¶ 17} After a series of trial court pleadings and motions practice not relevant to
this appeal, on October 5, 2015, MAG moved for summary judgment. Bay responded in
opposition on October 23, 2015 and MAG replied on October 30, 2015. On November 20,

2 Due to a filing error, this document appears on the electronic docket as though it were filed on
September 23, 2015. However, the date stamp confirms that it was filed on October 23, 2015.
3 Because this appeal is from a grant of summary judgment against Bay, the underlying facts recited above

are derived solely from Bay's deposition, Bay's affidavit, and other materials to the extent they are not
inconsistent with Bay's view of the facts.
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No. 15AP-1156

2015, the trial court granted MAG's motion for summary judgment, reasoning in salient
part as follows:

Throughout the events at issue Mr. Bay unquestionably
believed that he was an at-will employee and knew that meant
he could be fired for any reason or no reason at all. (See, Bay
Depo., p. 208) Mr. McCarthy said nothing to plaintiff
promising him continued employment if he signed
documents. McCarthy merely asked Mr. Bay if he liked his
job. Plaintiff testified in his deposition that this exchange was
the extent of their conversation. Nothing said would lead a
reasonable employee to think they had to sign the documents
in order to retain their employment, or cause them to
reasonably rely upon such a cryptic statement as changing at-
will status into tenure. In short, plaintiff can prove neither
fraud, nor reasonable reliance. No reasonable jury could
conclude otherwise.

(Nov. 20, 2015 Journal Entry at 7.) The trial court also criticized Bay's use of an affidavit
to "attempt[] to speak for" Lester, Brentlinger, and McCarthy by recounting statements
allegedly made in their depositions without filing the depositions themselves. Id. at 4.
{¶ 18} On December 1, 2015, Bay filed a motion requesting reconsideration of the
decision and attached some excerpts of Lester's deposition. The following day, the trial
court denied the request for reconsideration. It reasoned as follows:

[Bay] claims the court misunderstood his claim and that it
was not tied to his continued employment (and change from
at-will status). Bay thus says his 'fraud claim require[d] only
proof that [he] justifiably relied on McCarthy's knowing
omission, to his detriment, by signing the Second [patent]
Assignment.' (Pl. Motion filed 12/1/15, p.2). Further,
'McCarthy fraudulently omitted to tell Bay . . . that he would
again be terminated once he signed the documents assigning
the patent to MAG when he hinted strongly to him that he
needed to sign to keep his job.' (Id. at p. 3-4)

Mr. Bay unilaterally assumed a set of facts. Mr. Bay assumed
that in consideration of transferring his patent application
rights he could keep his at-will employment. He drew that
conclusion without obtaining any express clarification of what
his employer intended, or a promise of job security.
Essentially all he had to go on was one cryptic question: "you
like your job, don't you?" As explained in the original
decision, Mr. Bay jumped to the wrong conclusion. Plaintiff
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No. 15AP-1156

has not demonstrated a genuine question of fraud, or of
reasonable reliance, sufficient to send this case forward to
trial.

(Dec. 2, 2015 Journal Entry at 1.)
{¶ 19} Following these decisions, on December 2, 2015, MAG voluntarily
dismissed its counterclaims. With no more claims remaining before it, the trial court, on
December 4, 2015, issued a final judgment entry dismissing the case with prejudice and
assessing costs against Bay. Bay now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 20} Bay assigns two errors for our review:

(1) THE TRIAL COURT ERRED IN CONCLUDING
PLAINTIFF COULD NOT PROVE HIS CLAIM OF
FRAUDULENT MISREPRESENTATION AND,
THEREFORE, GRANTING SUMMARY JUDGMENT IN
FAVOR OF DEFENDANT.

(2) THE TRIAL COURT ERRED IN STATING THAT
PLAINTIFF BASED HIS FRAUD CLAIM ON THE
EXISTENCE OF AN IMPLIED OR EXPRESS CONTRACT
ALTERING THE TERMS OF HIS DISCHARGE.

Because these assignments of error are related, we discuss them together.
III. DISCUSSION
A. Standard of Review
{¶ 21} Civ.R. 56(C) provides:

Summary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, 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 matter of law.

The Supreme Court of Ohio has explained:

Summary judgment will be granted only when there remains
no genuine issue of material fact and, when construing the
evidence most strongly in favor of the nonmoving party,
reasonable minds can only conclude that the moving party is
entitled to judgment as a matter of law. Civ.R. 56(C); Temple
v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 Ohio
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No. 15AP-1156

Op. 3d 466, 364 N.E.2d 267. The burden of showing that no
genuine issue of material fact exists falls upon the party who
files for summary judgment. Dresher v. Burt (1996), 75 Ohio
St.3d 280, 294, 1996 Ohio 107, 662 N.E.2d 264.

Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10; see also, e.g., Esber Beverage Co.
v. Labatt United States Operating Co., L.L.C., 138 Ohio St.3d 71, 2013-Ohio-4544, ¶ 9.
{¶ 22} The Supreme Court has also discussed in detail the relative burdens of a
movant and nonmovant for summary judgment:

[A] party seeking summary judgment, on the ground that the
nonmoving party cannot prove its case, bears the initial
burden of informing the trial court of the basis for the motion,
and identifying those portions of the record which
demonstrate the absence of a genuine issue of material fact on
the essential element(s) of the nonmoving party's claims. The
moving party cannot discharge its initial burden under Civ.R.
56 simply by making a conclusory assertion that the
nonmoving party has no evidence to prove its case. Rather,
the moving party must be able to specifically point to some
evidence of the type listed in Civ.R. 56(C) which affirmatively
demonstrates that the nonmoving party has no evidence to
support the nonmoving party's claims. If the moving party
fails to satisfy its initial burden, the motion for summary
judgment must be denied. However, if the moving party has
satisfied its initial burden, the nonmoving party then has a
reciprocal burden outlined in Civ.R. 56(E) to set forth specific
facts showing that there is a genuine issue for trial and, if the
nonmovant does not so respond, summary judgment, if
appropriate, shall be entered against the nonmoving party.

(Emphasis sic.) Dresher v. Burt, 75 Ohio St.3d, 293 (1996). In deciding summary
judgment, the trial court must give the nonmoving party "the benefit of all favorable
inferences when evidence is reviewed for the existence of genuine issues of material facts."
Byrd at ¶ 25. When reviewing a trial court's decision on summary judgment, our review is
de novo, and we, therefore, apply the same standards as the trial court. Westfield Ins. Co.
v. Hunter, 128 Ohio St.3d 540, 2011-Ohio-1818, ¶ 12; Bonacorsi v. Wheeling & Lake Erie
Ry., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24.
B. Evidentiary Issues
{¶ 23} Before we consider whether summary judgment was proper, we note that
MAG has raised two preliminary evidentiary issues in its brief. First, MAG argues that
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No. 15AP-1156

this Court should strike references to evidence Bay filed with the trial court after the trial
court made its decision on summary judgment. Second, it argues we should disregard
Bay's self-serving affidavit.
{¶ 24} The analysis of evidence is appropriate in summary judgment posture. This
Court has stated:

When ruling upon a motion for summary judgment, a trial
court only considers admissible evidence. Tokles & Son, Inc.
v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 631, fn.
4, 605 N.E.2d 936 ("Only facts which would be admissible in
evidence can be * * * relied upon by the trial court when ruling
upon a motion for summary judgment."); Nationwide Life
Ins. Co. v. Kallberg, Lorain App. No. 06CA008968, 2007
Ohio 2041, at ¶ 20; Molnar v. Klammer, Lake App. No. 2004
L 072 CA, 2005 Ohio 6905, at ¶ 65; Brady-Fray v. Toledo
Edison Co., Lucas App. No. L-02-1260, 2003 Ohio 3422, at
¶ 30.

Guernsey Bank v. Milano Sports Ent., LLC, 177 Ohio App.3d 314, 2008-Ohio-2420, ¶ 59;
see also, e.g., Cunningham v. Children's Hosp., 10th Dist. No. 05AP-69, 2005-Ohio-4284,
¶ 18 ("A trial court does not abuse its discretion in disregarding an expert's affidavit that
does not set forth the information required to qualify the affiant to give expert
testimony.").
{¶ 25} Moreover, MAG is correct that in situations where an item of evidence was
not available to the trial court at the time it made the decision being appealed, such
evidence cannot be considered on review.

Appellate review is limited to the record as it existed at the
time the trial court rendered its judgment. Fifth Third Bank v.
Financial S. Office Partners, Ltd., 2d Dist. No. 23762, 2010
Ohio 5638; Cunningham v. Cunningham, 5th Dist. No. 09-
CA-25, 2010 Ohio 1397, ¶65; Paasewe v. Wendy Thomas 5
Ltd., 10th Dist. No. 09AP-510, 2009 Ohio 6852, ¶ 15. See also
UAP-Columbus JV326132 v. Young, 10th Dist. No. 09AP-646,
2010 Ohio 485, ¶ 32 ("Our review of summary judgment is
limited solely to the evidence that was before the trial court at
the time of its decision."). " 'A reviewing court cannot add
matter to the record before it, which was not a part of the trial
court's proceedings, and then decide the appeal on the basis of
the new matter.' " Morgan v. Eads, 104 Ohio St.3d 142, 2004
Ohio 6110, ¶ 13, 818 N.E.2d 1157 (quoting State v. Ishmail
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No. 15AP-1156

(1978), 54 Ohio St.2d 402, 377 N.E.2d 500, paragraph one of
the syllabus). Likewise, "a reviewing court cannot consider
evidence that a party added to the trial court record after that
court's judgment, and then decide an appeal from the
judgment based on the new evidence." Paasewe at ¶15. See
also Wallace v. Mantych Metalworking, 189 Ohio App.3d 25,
2010 Ohio 3765, ¶ 10-11, 937 N.E.2d 177 (refusing to consider
a deposition filed with the trial court after the court rendered
the judgment being appealed); Waterford Tower
Condominium Assn. v. TransAmerica Real Estate Group,
10th Dist. No. 05AP-593, 2006 Ohio 508, ¶ 13 (refusing to
consider evidence adduced to support a motion for
reconsideration when reviewing the underlying judgment).

Wiltz v. Clark Schaefer Hackett & Co., 10th Dist. No. 11AP-64, 2011-Ohio-5616, ¶ 13.
{¶ 26} However, Bay appeals both the trial court's summary judgment as well as
the trial court's decision on reconsideration of summary judgment, both of which are
encompassed in a December 4, 2015 judgment entry by the trial court. While it is true
that the trial court did not have Lester's deposition excerpts at the time it decided MAG's
summary judgment motion, it did have them when it addressed Bay's motion to
reconsider summary judgment. We hold that reference to the excerpts is appropriate in
this appeal on the question of whether the trial should have reconsidered its decision but
not on whether summary judgment should have been granted in the first instance.
{¶ 27} MAG also argues that Bay's affidavit is self-serving and should not be
considered for that reason. The Supreme Court has characterized an affidavit
contradicting former deposition testimony as a "sham affidavit" that cannot, without
explanation, create a genuine issue of fact sufficient to defeat a motion for summary
judgment. Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237, ¶ 1, fn.1, syllabus;
Byrd at paragraph three of the syllabus; see also Turner v. Turner, 67 Ohio St.3d 337
(1993), paragraph one of the syllabus (an affidavit inconsistent with deposition testimony
does not support a grant of summary judgment). This Court has also recognized that
"unsupported and self-serving assertions" in an affidavit that amount to "nothing more
than bare contradictions of the evidence offered by the moving party" can be insufficient
in defending against a motion for summary judgment. White v. Sears, 10th Dist. No.
10AP-294, 2011-Ohio-204, ¶ 8. However, there is no precedent for extending that holding
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No. 15AP-1156

to allow evidence or an affidavit to be stricken simply because it may contain self-serving
assertions.
{¶ 28} The fact that evidence or testimony is "self-serving" is not a basis under any
of the Ohio Rules of Evidence for excluding or ignoring evidence. Evid.R. in passim. In
fact, any affidavit by a party that is beneficial to that party is likely to be intrinsically self-
serving. Unless we are to revert to the ancient and well-repudiated rule that a witness is
incompetent to testify where the witness has an interest in the proceedings, the self-
serving nature of evidence, standing alone, is not a basis for exclusion. Compare
Messenger v. Armstrong, 19 OHIO 41 (1850), syllabus (exemplifying the rule of witness
incompetence on the grounds of interest in the outcome), with Evid.R. 601 (proclaiming
that all persons are competent witnesses except as otherwise provided in the rules, which
do not include interest as a grounds for lack of competence). If a trial of this case
occurred, Bay could take the witness stand, testify in his own interest, and prevail based
on that testimony if a jury believed him. Under these circumstances, it would be
inappropriate for the court to strike an affidavit used to defend against summary
judgment when it essentially offers a sworn statement that summarizes what would be
sworn and testified to at a trial.
{¶ 29} Nor does Bay's affidavit violate Civ.R. 56(E) as MAG alleges. Civ.R. 56(E)
provides in relevant part:

Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated in the affidavit.
Sworn or certified copies of all papers or parts of papers
referred to in an affidavit shall be attached to or served with
the affidavit.

While it may be unorthodox for an affiant to relate what other persons said in deposition
testimony (especially without attaching a copy of the deposition), this practice does not
automatically violate Civ.R. 56(E). Perhaps to save deposition transcript costs, Bay, who
had obviously and as a party attended the depositions, offered his own sworn statement to
paraphrase the testimony of Lester and Brentlinger as he had witnessed them. In this
way, he could meet Civ.R. 56(E)'s requirement of personal knowledge having personally
heard Lester and Brentlinger testify during their depositions. Because Bay simply relayed
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No. 15AP-1156

his memory of Lester's and Brentlinger's deposition testimony, rather than attempting to
recite the content of their transcripts, Bay did not "refer[]" to a document which he would
have been required to attach according to Civ.R. 56(E). (Bay Aff. at ¶ 4-5, 8.)
{¶ 30} In other circumstances Bay's affidavit might fail Civ.R. 56(E)'s mandate that
facts in an affidavit be admissible, because a recitation of the statements of other persons
in order to establish the truth of what those persons said would typically amount to
hearsay. Evid.R. 801-802. However, Lester and Brentlinger were both executive-level
employees (and, in the case of Brentlinger, a principal) of the defendant.4 Accordingly,
their statements were not hearsay because they were statements made by a party
opponent as set forth in Evid.R. 801(D)(2). See, e.g., Pontius v. Riverside Radiology &
Interventional Assocs., 2016-Ohio-1515, ¶ 14-18 (10th Dist.). Had the case gone to trial,
Bay would have been permitted to testify from his personal knowledge about what
executives said in order to prove the truth of the matters asserted in their statements.
Therefore, the material was permitted to be included in his affidavit on summary
judgment, since Bay's affidavit does not appear to have been offered to prove the content
of deposition transcriptions if they existed at the time but, rather, to be direct evidence of
what he heard.
{¶ 31} As such, the affidavit is also not subject to an analysis for admissibility
under Evid.R. 1002 through 1004, the contents of which are sometimes referred to as the
"best evidence rule."

The "best evidence" rule, however, does not apply where an
officer testifies as to what he heard first-hand. Lewis, 7th Dist.
Mahoning No. 03 MA 36, 2005 Ohio 2699, at ¶ 132;[5] State
v. Cechura, 7th Dist. Columbiana No. 99CO74, 2001 Ohio
3250, ¶ 19. "[W]hen a person testifies from memory about a
conversation they had with a defendant that just so happened
to be recorded, they are not attempting to prove the contents
of a recording." Cechura; see also State v. Turvey, 84 Ohio
App.3d 724, 735, 618 N.E.2d 214 (4th Dist.1992). This is true

4 Although the trial court critiqued Bay's affidavit as "attempt[ing] to speak for Messrs. Brentlinger, Lester,

and McCarthy," our examination of Bay's affidavit reveals that it only paraphrases deposition testimony of
Lester and Brentlinger, not McCarthy. (Nov. 20, 2015 Journal Entry at 4; Bay Aff. at ¶ 4-5, 8.) This is
significant because McCarthy was no longer an employee of the defendant at the time of his deposition, and
thus, his statements would not have been defined as "not hearsay" in Evid.R. 801(D)(2)(d).
5 The full cite for this case is State v. Lewis, 7th Dist. No. 03 MA 36, 2005-Ohio-2699, ¶ 132.
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No. 15AP-1156

where an officer testifies about a confession and the state
presents the written confession itself, because neither the
testimony nor the written confession is dependent upon the
existence of the videotaped confession. Id. Therefore, the
"best evidence" rule would not apply.

State v. Kimmie, 8th Dist. No. 99236, 2013-Ohio-4034, ¶ 94. It should also be noted that
if MAG wished to demonstrate to the trial court that Bay's paraphrasing of what he heard
the three executives say at their depositions was not accurate, MAG could have used their
deposition transcripts to show error in Bay's recollection.
C. Whether Summary Judgment Should have been Rendered on the
Fraud Claim
{¶ 32} The Supreme Court has determined the elements of a common law fraud
claim to be as follows:

Fraud consists of "(a) a representation or, where there is a
duty to disclose, concealment of a fact, (b) which is material to
the transaction at hand, (c) made falsely, with knowledge of
its falsity, or with such utter disregard and recklessness as to
whether it is true or false that knowledge may be inferred, (d)
with the intent of misleading another into relying upon it, (e)
justifiable reliance upon the representation or concealment,
and (f) a resulting injury proximately caused by the reliance."
Gaines v. Preterm-Cleveland Inc. (1987), 33 Ohio St.3d 54,
55, 514 N.E.2d 709.

Groob v. Keybank, 108 Ohio St.3d 348, 2006-Ohio-1189, ¶ 47. If MAG satisfies its
burden to "affirmatively demonstrate[] that [Bay] has no evidence to support [his]
claims," then Bay "has a reciprocal burden * * * to set forth specific facts showing that
there is a genuine issue for trial." Dresher at 293. In other words, if MAG can show that
Bay is unable to present at least a question of fact on any one of the necessary fraud
elements which he would be required to prove at trial, then MAG will prevail. Conversely,
if Bay can show that for each element of fraud, it is either undisputedly in his favor or
there is at least a genuine material factual question, then Bay will have successfully
defended MAG's motion. Thus, the question is whether the summary judgment record
shows that "there is no genuine issue" of fact as to any element of fraud and "that [MAG]
is entitled to judgment as a matter of law." Civ.R. 56(C).
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No. 15AP-1156

{¶ 33} Bay's theory of fraud in this case, as set forth in his complaint and affidavit
and in his deposition, is that McCarthy's question, "[y]ou like your job, don't you?"
fraudulently induced him to sign over his rights to the potential patent in exchange for the
false implication that he would keep his job if he signed it over. Bay argues that he was
not going to keep his job anyway and that McCarthy's rather rhetorical question was
designed or intended to make him think either he would lose his job unless he signed the
assignment and that he would keep his job if he signed the assignment. (Bay Dep. at 205;
Bay Aff. at ¶ 6-7.) McCarthy testified in his deposition that, at the time he allegedly asked
this question, which is central to Bay's single fraud claim, McCarthy had no knowledge
that MAG's executives did not intend to retain Bay or that they were planning to
terminate him anyway.
{¶ 34} While we could parse and analyze each factor of Groob, one-by-one, we find
it unnecessary to do so, since Bay's burden at trial would be to prove by a preponderance
of the evidence each of the elements necessary to demonstrate fraud. At the pretrial
juncture of summary judgment, the question is whether the record shows a "genuine issue
as to any material fact" with regard to any element of fraud, and, if not, whether MAG is
entitled to judgment as a matter of law on the undisputed facts. Thus, if we find, that the
record shows that Bay undisputedly cannot prevail on any element or that there is not at
least one question of fact relating to any one element, Bay's claim may be defeated on
summary judgment. For the reasons that follow, we conclude that the record does not
present evidence to create a genuine issue of fact on whether McCarthy made a false
representation or concealed a fact that he had a duty to disclose.
{¶ 35} Drawing all reasonable inferences in favor of Bay, it could be concluded that
the question, "[y]ou like your job, don't you?" when posed by an executive to an employee
and accompanied by a request that the employee do something, amounts to the
representation, "do this or you are fired," or in the converse "sign this and keep your job."
Because Bay asserts that he was going to be fired anyway, McCarthy's alleged
representation, construed in Bay's favor, may be more in the nature of concealing a fact
for which there was a duty to disclose. Bay has offered no evidence to refute McCarthy's
statement in his deposition that he did not know Bay was going to be terminated when he
presented the assignment for Bay to sign. McCarthy owed no duty to Bay to disclose to
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No. 15AP-1156

him that he would be fired under the undisputed facts in the record because he could not
conceal what he did not know.
{¶ 36} While we have viewed McCarthy's question, "[y]ou like your job, don't you?"
in a light most favorable to Bay, as a representation, we recognize that it was not a
statement but, rather, a rhetorical question with perhaps an inference. Characterizing the
question as a reckless question that creates an inference of knowledge of falsity (Groob at
¶ 47), "[y]ou like your job, don't you?" fails in law and in evidence as one of the necessary
elements of fraud.
{¶ 37} Black's Law Dictionary defines inference as, "[a] conclusion reached by
considering other facts and deducing a logical consequence from them." Black's Law
Dictionary, 897 (10th Ed.2014). It also defines "inferential fact" as "[a] fact established
by conclusions drawn from other evidence rather than from direct testimony or evidence;
a fact derived logically from other facts." Black's at 710. These definitions do not include
assuming a fact (that McCarthy knew Bay would be terminated the next day). Bay offers
no evidence to contradict McCarthy's testimony that he did not know Bay would be
terminated the next day. McCarthy's question in the context of the other facts in evidence
does not permit an inference that would satisfy a necessary element of fraud, "knowledge
of its falsity" or "utter disregard and recklessness as to whether it [wa]s true or false."
Groob at ¶ 47. McCarthy's uncontradicted deposition testimony was that he had no idea
that Lester planned to fire Bay and did not find out about it until after it happened
because he was dealing with a family health issue. Bay has offered no other facts with
which to draw the requisite competing inference that McCarthy knew or was reckless as to
whether Bay would continue to be employed even if he signed the forms requested.6
{¶ 38} Nor can we find evidence that Bay justifiably relied on McCarthy's question.
We note that Bay used company funds to pay for the patent attorney and for the software

6 We acknowledge that "[i]t is a basic rule of law that knowledge as to an employer's business received by an

employee in the ordinary course of business is imputed to the employer." Am. Fin. Corp. v. Fireman's Fund
Ins. Co., 15 Ohio St.2d 171, 174 (1968). However, "[t]he underlying reason for it is that an innocent third
party may properly presume the agent will perform his duty and report all facts which affect the principal's
interest." John Hancock Mut. Life Ins. Co. v. Luzio, 123 Ohio St. 616, 623 (1931). We are not aware of any
principle of law that would invert this principle so as to impute knowledge of Lester's decision to fire Bay to
McCarthy in the absence of affirmative evidence of some kind, even though Lester and McCarthy were both
executives in the same company.
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No. 15AP-1156

development and had disclosed to Brentlinger that another company had already spent
millions developing the same software solution. It is clear from the evidence that
Brentlinger was extremely dissatisfied that Bay had spent the company's money and had
run into problems with the widget's development and was now claiming that his use of the
company's funds (and time) entitled him to retain something of (questionable) value,
regardless of the requirements for inventorship attribution in U.S. patent law.
{¶ 39} We consider it appropriate to address reliance because that issue was
central to the trial court's holding and also features in Bay's arguments before this Court.
Bay argues that he "justifiably" relied on an inference he had drawn from McCarthy's
question, "[y]ou like your job, don't you?" that signing a document assigning the potential
patent would save his job when that representation was false. Id. Bay had already stated
to Brentlinger that it would be he and Brentlinger on the patent application. Yet, Bay was
executing the undertaking of the patent effort as if it was his personally, with e-mail
correspondence with the patent attorney going to his personal, rather than work, e-mail,
all the while using company funds to pay for what he at times considered to be a personal
undertaking. Under these circumstances, it is difficult to see how he could justifiably rely
on any inference from McCarthy's statement, "[y]ou like your job, don't you?" that if he
signed the assignment he would keep his job. Bay had already alluded in e-mail
statements to Brentlinger that he may be fired for the direction the patent effort was
heading. Viewing this evidence in a light most favorable to Bay, perhaps this was his way
of apologizing to Brentlinger for the circumstances, but his mention of firing presents
evidence of clear self-recognition that he had made some serious errors.
{¶ 40} Even on Bay's version of the facts, Bay was doing nothing he had not already
done or intended to do when he transferred his interest in the widget patent effort to
MAG on October 24, 2014. Assuming there was an injury involved in signing over his
widget patent idea,7 it is difficult to see how a reasonable mind could conclude that the
injury was "proximately caused by the reliance." Id. According to Bay's testimony, he
always intended that the patent would belong to MAG and, over a month before the
October conversation in which McCarthy allegedly posed the "[y]ou like your job"

7This is a somewhat dubious assumption since Bay's idea was never reduced to code, logic-ties, or a working
prototype and has apparently not been successfully patented by either Bay or MAG.
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No. 15AP-1156

question, Bay signed documents which he believed assigned his rights of the idea to MAG.
Whether those documents were actually signed or effective is not clear from the record.
But the fact that Bay apparently thought they were and always intended MAG to own the
patent shows clearly that he did not assign the rights to the idea as a result of reliance
upon McCarthy's statement. Viewing the facts most favorably to Bay, no reasonable mind
could conclude otherwise.
{¶ 41} For the reasons expressed, we find no error in the conclusion that summary
judgment against Bay was appropriate, and we overrule both of Bay's assignments of
error.
IV. CONCLUSION
{¶ 42} MAG met its burden to show that, viewing the facts in a light most favorable
to Bay and drawing every reasonable inference in his favor, Bay's fraud claim fails as a
matter of law. Accordingly, summary judgment was appropriate by the trial court. It is
the judgment of this Court that the judgment of the Franklin County Court of Common
Pleas is affirmed.
Judgment affirmed.
HORTON, J., concurs.
DORRIAN, P.J., concurs in judgment only.

DORRIAN, P.J., concurring in judgment only.
{¶ 43} I respectfully concur in judgment only.
{¶ 44} Bay's affidavit does not aver that Brentlinger or Lester told McCarthy of
Lester's September decision to terminate him. Therefore, the affidavit does not affect the
conclusion that Bay did not prove fraudulent misrepresentation because McCarthy was
not aware that Bay was going to be terminated when he presented the assignment for Bay
to sign and stated, "[y]ou like your job, don't you?" (Bay Dep. at 205.)
{¶ 45} Therefore, I do not believe it is necessary to determine the evidentiary issue
raised by MAG regarding whether the court could consider Bay's summary of Lester and
Brentlinger's deposition testimony contained in his affidavit.