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Davidson v. Ziegler Tire and Supply Co.

Court of Appeals of Ohio, Fifth District

June 24, 2013

ROBERT J. DAVIDSON Plaintiff-Appellant
v.
ZIEGLER TIRE AND SUPPLY CO. Defendant-Appellee

Civil Appeal from the Court of Common Pleas, Case No. 2012 CV 00104

For Plaintiff-Appellant, MICHAEL B. BOWLER, VINCENT V. VIGLUICCI, BLAKEMORE, MEEKER & BOWLER

For Defendant-Appellee KRISTEN S. MOORE, DANIEL E. CLEVENGER, DAY KETTERER

JUDGES: Hon. William B. Hoffman, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

Wise, J.

{¶1} Plaintiff-Appellant Robert J. Davidson appeals the decision of the Court of Common Pleas, Stark County, which granted summary judgment in favor of Defendant-Appellee Ziegler Tire and Supply Co. on appellant's civil complaint for age discrimination and breach of contract. The relevant facts leading to this appeal are as follows.

{¶2} Appellant Robert J. Davidson was hired as the general manager of Appellee Ziegler Tire & Supply Company in June 2001. The hiring decision was made by appellee's president, William Ziegler. In order to take the job with Appellee Ziegler Tire, appellant left his position as Michelin Tire's director of national dealer sales. Appellant had been employed with Michelin Tire for twenty-two years.

{¶3} Mr. Ziegler terminated appellant in June 2009. At the time of his termination, appellant was fifty-five years old and the company's highest-paid employee. According to appellant, he was replaced by Nathan Clements, who was thirty-three years old.

{¶4} On May 17, 2010, appellant filed a complaint in the Stark County Court of Common Pleas (case no. 2010-CV-01936), in which he claimed age discrimination under R.C. 4112.14, breach of contract, and unjust enrichment. In January 2011, appellant voluntarily dismissed that complaint without prejudice.

{¶5} On January 9, 2012, appellant again filed a complaint in the Stark County Court of Common Pleas (case no. 2012-CV-00104), in which he claimed age discrimination under R.C. 4112.14 and breach of contract. Appellee filed an answer on January 24, 2012.

{¶6} In a scheduling order dated February 14, 2012, the trial court set a number of deadlines, including a discovery cut-off date of October 5, 2012.

{¶7} On April 3, 2012, appellee filed a motion for summary judgment. Appellant filed a memorandum in opposition to summary judgment on May 2, 2012. On August 3, 2012, appellee filed a supplemental motion for summary judgment.

{¶8} On August 14, 2012, prior to appellant responding to the supplemental motion for summary judgment, the trial court issued a judgment entry granting summary judgment in favor of appellee. Appellant's trial counsel, apparently prior to becoming aware of said summary judgment entry, filed a memorandum in opposition to appellee's supplemental motion for summary judgment, which was filed with the court on August 16, 2012.

{¶9} On August 27, 2012, appellant filed a "motion for reconsideration" of the granting of summary judgment. The trial court did not address the ...


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