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Cassandra Wiltz v. Clark Schaefer Hackett & Co. et al

November 1, 2011


APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 10CVH08-11570)

The opinion of the court was delivered by: Klatt, J.

Cite as Wiltz v. Clark Schaefer Hackett & Co.,



{¶1} Plaintiff-appellant, Cassandra Wiltz, appeals judgments of the Franklin County Court of Common Pleas in favor of defendants-appellees, Clark Schaefer Hackett & Company and Kent D. Pummel (together the "Clark defendants") and Schneider Downs and Co., Inc., Joseph Patrick, Roy Lydic, and Bradley P. Tobe (together the "Schneider defendants"). For the following reasons, we affirm the trial court's December 20, 2010 judgment, and we vacate the February 24, 2011 judgment.

{¶2} This action arises out of Wiltz's employment with Moundbuilders Guidance Center, Inc. ("Moundbuilders") as its controller. Wiltz's job duties included maintaining Moundbuilders' financial records. Moundbuilders engaged Clark Schaefer Hackett & Company to perform yearly audits of its financial statements for the 2003-2004, 2004- 2005, 2005-2006, and 2006-2007 fiscal years. Pummel oversaw those yearly audits. Moundbuilders hired Schneider Downs and Co., Inc., to audit its financial statements for the 2007-2008 fiscal year. Apparently, Patrick, Lydic, and Tobe participated in that audit.

{¶3} Wiltz brought suit against defendants on August 6, 2010. In her complaint, Wiltz alleged that shortly after beginning her employment with Moundbuilders, she discovered that it maintained false and misleading financial records, and that it used those records to fraudulently obtain funding. Wiltz asserted that Moundbuilders understated expenses, overstated income, did not make needed financial adjustments, and failed to follow generally accepted accounting principles. According to Wiltz, Moundbuilders employees explained to her that the Clark defendants had assisted Moundbuilders with its improper accounting and reporting practices. Wiltz allegedly also discovered that Moundbuilders employees and board members, along with the Clark and Schneider defendants, agreed that: (1) "off-the-books" records would be used to prepare Moundbuilders' financial statements, (2) the general ledger would be corrected only at the end of the 2007-2008 fiscal year, and (3) the audit report for the 2007-2008 fiscal year would falsely state that Moundbuilders had no apparent internal control weaknesses over financial reporting and that any problems with Moundbuilders' accounting practices were not deliberate. According to Wiltz, the Schneider defendants carried out the latter two tasks.

{¶4} Wiltz also claimed that Jeff Forman, Moundbuilders' chief financial officer, instructed her to make erroneous journal entries in Moundbuilders' financial records. When Wiltz refused and objected to Moundbuilders' accounting practices, Forman and other Moundbuilders employees allegedly threatened, intimidated, and harassed her, and subjected her to differential treatment that Wiltz believed was racially motivated.*fn1 Wiltz then complained to Moundbuilders' board about the treatment that she had received and her belief that Moundbuilders engaged in improper accounting practices. According to Wiltz, her complaints caused certain Moundbuilders employees and board members to decide to terminate her employment. In her complaint, Wiltz asserted that this group advised defendants that they intended to retaliate against Wiltz for her complaints by firing her. The group also allegedly told defendants that they knew that Wiltz's complaints about Moundbuilders' accounting practices were valid, but they asked defendants to provide statements that the complaints were actually unsound and untrue. According to Wiltz, defendants agreed to the proposed scheme, and they then provided false statements to Moundbuilders, which Moundbuilders relied on to justify the termination of Wiltz's employment.

{¶5} Based on the allegations of the complaint, Wiltz asserted that defendants aided, abetted, incited, compelled, and/or coerced Moundbuilders to discharge her because of her race. Wiltz contended that these actions violated R.C. 4112.02. Wiltz also asserted claims for professional negligence and intentional infliction of emotional distress.

{¶6} Originally, this case was assigned to Judge Beverly Y. Pfeiffer. Judge Pfeiffer, however, requested that the administrative judge reassign the case to another judge because she was a client of Clark Schaefer Hackett & Company. An entry dated December 13, 2010 indicates that the administrative judge approved the recusal and transferred the case to Judge David Cain.

{¶7} After answering Wiltz's complaint, the Clark defendants moved for summary judgment on all of Wiltz's claims. To support their motion, the Clark defendants relied on Pummel's affidavit. Pummel testified that Patrick Evans, the chief executive officer of Moundbuilders, faxed to him a copy of a letter from Wiltz criticizing Moundbuilders' accounting practices and a copy of a letter from Forman responding to Wiltz's criticisms. Pummel reviewed the letters and told Evans that the dispute between Wiltz and Forman appeared to have arisen from a miscommunication between them. At the request of a member of Moundbuilders' board, Pummel reiterated his opinion regarding the dispute to the entire board. Pummel also informed the board that certain criticisms Wiltz set forth in her letter had some validity. During these two conversations, neither Evans nor the board disclosed to Pummel that Moundbuilders was contemplating any employment-related discipline with regard to Wiltz. Additionally, neither Evans nor the board mentioned Wiltz's race. At the time of the two conversations, Pummel did not know Wiltz's race.

{¶8} Like the Clark defendants, the Schneider defendants also answered Wiltz's complaint. The Schneider defendants, however, then moved for judgment on the pleadings, not summary judgment. In large part, the Schneider defendants' arguments depended upon their assertion, supported by a letter attached to their answer, that Moundbuilders did not formally engage Schneider to perform the 2007-2008 audit until two months after Moundbuilders discharged Wiltz.

{¶9} Wiltz did not respond to either motion. On December 20, 2010, the trial court issued a decision and entry that granted both the Clark and Schneider defendants' motions.

{¶10} On January 19, 2011, Wiltz filed a notice of appeal from the December 20, 2010 judgment. On the same day, Wiltz also filed a motion before the trial court entitled "Motion for Order that Reconsiders, Reverses, and Grants Relief from the Judgment Dated 12/20/10, for an Order that Compels Defendants to Provide the Plaintiff with Copies of the Summary Judgment Motion and the Motion for Judgment on the Pleadings, and for an Order that Establishes a Due Date for the Plaintiff's Oppositions/Responses to the Summary Judgment Motion and the Motion for Judgment on the Pleadings." (R. at 69.) In the affidavit Wiltz filed with her motion, she averred that neither the Clark nor Schneider defendants had provided her with copies of their motions.

{ΒΆ11} On February 24, 2011, the trial court issued a decision and entry denying Wiltz's motion. Wiltz then appealed that judgment. We consolidated this second appeal with ...

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