[Cite as Davila v. Simpson, 2018-Ohio-946.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

EDWIN DAVILA : JUDGES: 

 : Hon. Patricia A. Delaney, P.J. 

 Plaintiff - Appellant : Hon. Craig R. Baldwin, J. 

 : Hon. Earle E. Wise, J. 

-vs- : 

 : 

JENNIFER SIMPSON : Case No. 2017CA00166 

 : 

 Defendant - Appellee : O P I N I O N 

 

CHARACTER OF PROCEEDING: Appeal from the Stark County Court 

of Common Pleas, Case No. 2016 

CV 01691 

 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: March 12, 2018 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

ED DAVILA, pro se J. MICHAEL GATIEN 

333 Erie Street, South #325 2371 Chestnut Hill St., N.W. 

Massillon, Ohio 44648 North Canton, Ohio 44720 

 
Stark County, Case No. 2017CA00166 2 

Baldwin, J.

{¶1} Appellant, Edwin Davila, appeals the decision of the Stark County Court of 

Common Pleas granting summary judgment in favor of appellee, Jennifer Simpson. 

STATEMENT OF FACTS AND THE CASE 

{¶2} Appellant alleges that appellee intentionally interfered with his employment 

by Avanti Corporation, leading to his termination on December 13, 2015. 

{¶3} Appellant was hired by Avanti Corporation in 2001. The principal of the 

company, Gaetano Cecchini, approached appellant and invited him to work for Avanti, 

though the recitation of facts in appellant’s complaint reveals that many of the duties he 

assumed were personal services for Mr. Cecchini. Appellant states he “agreed to work 

for Cecchini and began employment with Avanti in that spring of 2001.” (Amended 

Complaint, paragraph 12). The complaint describes an employee handbook that would 

govern the “relationship between the employment (sic) between the plaintiff and Avanti 

during the term of the employment” (Amended Complaint, paragraph 13), but it also states 

that his duties would include “responsibilities which may be assigned to him on an ad hoc 

basis by Cecchini, individually, or through his companies. (Amended Complaint, 

paragraph 15). Finally, the complaint alleges that appellant was “also involved with 

assisting Cecchini with resolving his improper relationships with certain female 

employees.” (Amended Complaint, paragraph 16). 

{¶4} Appellant contends that during settlement negotiations of a contested 

divorce, Appellee requested that Mr. Cecchini terminate appellant’s employment with 

Avanti and all of Mr. Cecchini’s companies. Appellant argues that his termination was the 

direct result of that request and he offered documents in support of the contention that 
Stark County, Case No. 2017CA00166 3 

appellee made that demand. He described the documents as two letters from an attorney 

representing the appellee in the divorce and a responsive letter from Mr. Cecchini, all 

dated 2007. Appellant also offered a memorandum he drafted after hearing a telephone 

conversation purportedly between appellee and Mr. Cecchini. The letters are not 

authenticated by their purported authors and the letter attributed to Mr. Cecchini is not 

signed. Appellee offered nothing to authenticate the identity of the party who spoke with 

Mr. Cecchini during the phone call. 

{¶5} Appellant also submitted his affidavit containing descriptions of two 

telephone conversations he witnessed between Mr. Cecchini and appellee, one dated 

August 2015 and one dated November 2015, in which he contends that appellee insisted 

that appellant’s termination was a critical part of any settlement of the pending complaint 

for divorce. Appellant recalls that Mr. Cecchini did not agree with appellee, but told her 

they would talk about it later. The identity of the other person on the phone during the 

calls was not authenticated pursuant to Evid.R. 901(B)(6). 

{¶6} Mr. Cecchini terminated appellant’s employment on December 13, 2015 

due to “the distressed financial condition of Avanti Corporation and Cecchini Enterprises.” 

(Amended Complaint, paragraph 26). 

{¶7} Appellant filed a complaint on April 25, 2016 in the Cuyahoga County Court 

of Common Pleas and named Mr. Cecchini and Avanti Corporation as defendants. The 

defendants moved for a change of venue to Stark County on May 27, 2016. After the 

exchange of several pleadings, the court granted the motion on July 15, 2016. 

{¶8} The case was scheduled for a telephonic pretrial conference on September 

6, 2016. At the conference the trial court set deadlines and included within its order the 
Stark County, Case No. 2017CA00166 4 

following language: “plaintiff to strike extraneous statements from complaint within 30 

days.” No explanation is contained within the record regarding the trial court’s intent. 

Plaintiff filed an amended complaint on October 5, 2016 which included the appellee and 

the allegations that are pertinent to this appeal. On November 1, 2016 appellant 

dismissed all claims against Mr. Cecchini, Avanti Corporation and Cicchini, Inc., leaving 

appellee the only defendant. 

{¶9} Appellee filed an answer and counterclaim on January 17, 2017 and 

appellant filed his reply on February 2, 2017. On April 18, 2017, appellant filed a motion 

to disqualify appellee’s trial counsel, claiming that appellant planned to call him as a 

witness. Appellee opposed that motion and filed a motion for leave to file an amended 

answer. The motion requesting leave to file an amended answer was granted. Prior to the 

judge issuing a ruling on the motion to disqualify, new counsel entered an appearance on 

behalf of appellee making the motion to disqualify moot. 

{¶10} Appellee filed her amended answer on May 12, 2017 and scheduled the 

deposition of appellant. Appellant’s deposition was completed on June 1, 2017 and filed 

with the court on July 10, 2017. 

{¶11} On July 10, 2017, appellee filed a motion requesting a protective order 

regarding the sealed final decree of divorce and agreed judgment entry executed by 

appellee and Mr. Cecchini. Appellee requested that the court review the documents in 

camera to determine whether an agreement to terminate the appellant appeared in those 

documents. Appellee also requested that the documents remain sealed and that the 

appellant not be permitted to review them. 
Stark County, Case No. 2017CA00166 5 

{¶12} On July 17, 2017, appellant filed his opposition to the appellee’s motion, but 

appellant did not serve appellee with any discovery requests seeking a copy of the decree 

or an opportunity to review it. Appellant asserted that the decree was irrelevant, but did 

not object to the use of the decree in support of the motion for summary judgment and 

did not file a motion to strike the decree from the record. 

{¶13} On August 9, 2017, the trial court found that “plaintiff has not requested the 

divorce settlement agreement in discovery.” The Court further concluded “the court has 

conducted a review of the document and find (sic) the same shall not be disclosed to 

Plaintiff. Accordingly the motion for protective order is granted.” Appellant has not 

appealed this order. 

{¶14} Both parties filed motions for summary judgment on July 10, 2017, 

supported with affidavits, memoranda opposing the motions and replies. The trial court 

issued a ruling on August 9, 2017 granting appellee’s motion for summary judgment and 

finding the appellant’s motion moot. 

{¶15} The parties also exchanged several memoranda regarding motions in 

limine involving the appellant’s criminal history as well as a motion to strike any references 

to that history from the record and to strike comments made by appellee’s counsel. These 

motions remained unresolved as they became moot when the motion for summary 

judgment was granted. 

{¶16} Appellant filed this appeal and lists five assignments of error: 

{¶17} I. THE TRIAL COURT ERRED BECAUSE UNDER CIV. R 56(C) SIMPSON 

FAILED TO FURNISH EVIDENCE DEMONSTRATING ENTITLEMENT TO SUMMARY 
Stark County, Case No. 2017CA00166 6 

DISPOSITION OF THIS CASE AND SIMPSON FAILED TO DEMONSTRATE 

ENTITLEMENT AS A MATTER OF LAW. 

1. THE TRIAL COURT ERRED BECAUSE SIMPSON FAILED TO 

FURNISH PROPER DOCUMENTARY EVIDENCE SUPPORTING HER 

CLAIM FOR SUMMARY JUDGMENT. 

2. THE TRIAL COURT ERRED BECAUSE SIMPSON FAILED TO 

DEMONSTRATE ENTITLEMENT TO SUMMARY JUDGMENT AS A 

MATTER OF LAW. 

{¶18} II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN 

FAVOR OF SIMPSON WHERE SIMPSON ADMITTED IN HER AMENDED ANSWER 

THAT SHE INTERFERED WITH EMPLOYMENT WITH DAVILA'S CORPORATE 

EMPLOYER. 

{¶19} III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN 

FAVOR OF SIMPSON WHERE SIMPSON FAILED TO PLEAD THE AFFIRMATIVE 

DEFENSE OF PRIVILEGE TO INTERFERE WITH THE EMPLOYMENT OF DAVILA 

AFTER SHE ADMITTED INTERFERING WITH DAVILA'S EMPLOYMENT 

{¶20} IV. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

IN FAVOR OF SIMPSON BECAUSE OHIO LAW HAS NOT RECOGNIZE (SIC) A 

PRIVILEGE FOR AN ESTRANGED SPOUSE OR FORMER SPOUSE WHICH WOULD 

ALLOW SIMPSON'S ADMITTED INTERFERENCE WITH DAVILA'S EMPLOYMENT 

WITH HIS CORPORATE EMPLOYER. 

{¶21} V. THE TRIAL COURT ERRED IN SUGGESTING IN DICTA DAVILA'S 

CORPORATE EMPLOYER HAD THE RIGHT TO TERMINATE HIM AT ITS 
Stark County, Case No. 2017CA00166 7 

DISCRETION REGARDLESS OF SIMPSON'S INTERFERENCE AND THEREFORE 

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF 

SIMPSON. 

1. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

AND SUGGESTING IN DICTA AN AT-WILL EMPLOYMENT EXISTED 

BECAUSE DAVILA'S EMPLOYMENT WAS NOT AT-WILL UNDER THE 

DOCTRINE OF PROMISSORY ESTOPPEL AND NOT AT-WILL AS A 

RESULT OF AN EMPLOYEE HANDBOOK. 

2. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

AND SUGGESTING IN DICTA AN AT-WILL EMPLOYMENT EXISTED 

WHEN OHIO LAW PROVIDES A CLAIM OF TORTIOUS INTERFERENCE 

IS NOT BARRED BY A DISPUTED ASSERTION OF AT-WILL 

EMPLOYMENT. 

Standard of Review 

{¶22} Summary judgment proceedings present the appellate court with the unique 

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. 

The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). Civ.R. 56(C) 

provides, in pertinent part: 

Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, 

transcripts of evidence in the pending case, 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 
Stark County, Case No. 2017CA00166 8 

matter of law. * * * A summary judgment shall not be rendered unless it 

appears from such evidence or stipulation and only therefrom, that 

reasonable minds can come to but one conclusion and that conclusion is 

adverse to the party against whom the motion for summary judgment is 

made, such party being entitled to have the evidence or stipulation 

construed most strongly in his favor. 

Pursuant to the above rule, a trial court may not enter a summary 

judgment if it appears a material fact is genuinely disputed. The party 

moving for summary judgment bears the initial burden of informing the trial 

court of the basis for its motion and identifying those portions of the record 

that demonstrate the absence of a genuine issue of material fact. The 

moving party may not make a conclusory assertion that the nonmoving 

party has no evidence to prove its case. The moving party must specifically 

point to some evidence *759 which demonstrates the non-moving party 

cannot support its claim. If the moving party satisfies this requirement, the 

burden shifts to the non-moving party to set forth specific facts 

demonstrating there is a genuine issue of material fact for trial. Vahila v. 

Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), citing Dresher v. 

Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). 

Lanzer v. Louisville, 5th Dist. No. 2015 CA 00170, 2016-Ohio-8071, ¶ 31-32. 
Stark County, Case No. 2017CA00166 9 

Tortious Interference with Employment 

{¶23} The court in Slyman v. Shipman, Dixon & Livingston, Co., L.P.A., 2nd Dist. 

Miami No. 2008-CA-35, 2009-Ohio-4126, ¶ 11 outlined the elements necessary to 

establish tortious interference with an employment relationship: 

Tortious interference with an employment relationship “occurs when 

one party to the relationship is induced to terminate the relationship by the 

malicious acts of a third person who is not a party to the relationship at 

issue.” Tessmer v. Nationwide Life Ins. Co. (Sept. 30, 1999), Franklin App. 

No. 98AP-1278, 1999 WL 771013 at 6, citing Condon v. Body, Vickers & 

Daniels (1994), 99 Ohio App.3d 12, 22, 649 N.E.2d 1259. Accordingly, to 

establish such a claim, a plaintiff must demonstrate: “1) the existence of an 

employment relationship between plaintiff and the employer; 2) the 

defendant was aware of this relationship; 3) the defendant intentionally 

interfered with this relationship; and 4) the plaintiff was injured as a 

proximate result of the defendant's acts.” (Citations omitted). 

{¶24} We have confirmed the need for a malicious or wanton act that results in a 

termination as vital elements of such a claim: “The general rule in Ohio is that an 

employee earning a living has a right to pursue employment free from unwarranted 

interference by third persons, and that one who maliciously or wantonly procures the 

employee's discharge is liable in damages. Frankow v. Thorn EMI, Inc., 5th Dist. Richland 

No. 92-CA-83, 1993 WL 135701, *4, (Sep. 29, 1993). 
Stark County, Case No. 2017CA00166 10 

ANALYSIS 

{¶25} The breadth of appellant’s first assignment of error belies the argument 

contained within his brief. The assignment suggests a broad argument regarding the 

requirements for granting summary judgment and supporting documents, but the 

argument is much more narrow. Rather than a comprehensive argument regarding the 

evidence offered in support of appellee’s motion for summary judgment, appellant 

focuses only upon the trial court’s consideration of the appellee’s divorce decree. 

{¶26} Appellant contends that the trial court erred in considering the sealed 

divorce decree and cites to the requirements of Civ.R. 56. However, appellant did not 

present this argument to the trial court. The appellant opposed appellee’s motion seeking 

a protective order and in camera inspection of the decree and further argued that the 

decree would have no effect on his claims, but he did not file a motion to strike the decree, 

nor did he register any objection to its consideration in the context of a motion for 

summary judgment. “Failure to object to the court's consideration of the evidence 

submitted in support of a motion for summary judgment constitutes waiver of any alleged 

error in the consideration of the evidence. A trial court may consider evidence other than 

the evidence specified in Civ.R.56 (C) where no objection has been raised.” Assett 

Acceptance LLC v. Davis, 5th Dist. Fairfield No. 2004CA00054, 2004-Ohio-6967, ¶ 45, 

citations omitted. Appellant’s failure to object to the consideration of the final decree of 

divorce or agreed judgment entry or move to strike them waived any objection and the 

trial court was free to give the decree whatever weight it deemed appropriate. 

{¶27} Assuming, arguendo, the agreed judgment entry and the final decree of 

divorce were stricken from the record, appellee’s affidavit provides the same information 
Stark County, Case No. 2017CA00166 11 

when she states that “[t]he terms of my Final Settlement Agreement did not include 

anything regarding the plaintiff’s employment” and “I did not undertake any activity that 

actually caused the termination of the plaintiff’s employment and have no knowledge of 

the circumstances or reasons as to the same.” (Appellee’s affidavit attached to her Motion 

for Summary Judgment as Exhibit A). Any error in the consideration of the final decree 

and agreed entry would, therefore, be harmless. 

{¶28} Appellant’s second argument regarding this assignment is, similar to the 

first, much narrower than the assignment would lead this court to believe. A more accurate 

description of the alleged error is contained within the text of the argument where 

appellant states “Thus, the trial court erred because Rule 56 does not permit a trial court 

to use its reluctance in the absence of a demonstration by Simpson of evidentiary or legal 

support.” (Appellant’s Amended Brief, page 10) Appellant is referring to the trial court’s 

statement, on page 3 of its order where, in the context of describing the appellee’s alleged 

conduct as privileged the trial court states “[t]he facts of this case are unusual and, not 

surprisingly, there are no cases on point. This court is reluctant to impose liability on an 

employer’s estranged spouse for the employer’s decision to terminate his employee.” 

Appellant misinterprets this statement as the basis for the trial court’s decision when, 

reviewed in context of the entire opinion, it is only relevant to the court’s determination 

that the appellee’s alleged conduct was privileged. Because we view the trial court’s 

comment regarding its reluctance relates only to the analysis of privilege, we cannot 

agree that the trial court erred. 

{¶29} Appellant’s second assignment of error is overruled. 
Stark County, Case No. 2017CA00166 12 

{¶30} Appellant’s third assignment of error is based upon his contention that 

appellee admitted tortious interference with his employment and proximate cause in her 

amended answer. He concludes that, as a result, the only issue remaining to be decided 

is the harm he has suffered. We disagree with his interpretation of the pleadings. 

{¶31} Appellant refers us to the following allegations in his amended complaint: 

28. During the course of their divorce proceedings between Cecchini and 

Simpson on at least three separate occasions, Simpson demanded that she 

would agree to settle the divorce, if, among other demands, Cecchini 

agreed to terminate in every way possible the employment or any other 

relationship amongst Cecchini, Avanti Corporation, and Cicchini 

Enterprises and Plaintiff. 

29. Cecchini agreed to the request to terminate his relationship with Plaintiff 

as demanded by Simpson but rejected some of the other settlement 

provisions. 

Amended Complaint, page 5. 

{¶32} Appellant contends that the appellee’s response is an admission of tortious 

interference and causal connection: 

5. Defendant admits, subject to the Affirmative Defenses as are set forth 

herein, the allegations contained in paragraphs 28 and 29 but, denies that 

Plaintiff’s employment was terminated for the allegations claimed. 

Amended Answer, page 1. 

{¶33} Overlooked by appellant, but important in this context, are two affirmative 

defenses asserted by appellee: 
Stark County, Case No. 2017CA00166 13 

11. Assuming arguendo, without an admission of the same, that Plaintiffs 

claims have any validity, his damages were caused by the acts or omissions 

of other individuals or entitles over which Defendant had no control. 

12. Plaintiffs’ claims should fail for a failure to prove the Direct and 

Proximate Cause of his damages. 

Amended Answer, page 1. 

{¶34} We disagree with appellant’s characterization of the allegations and the 

response, as well as his conclusions regarding their effect. At best, the allegations and 

the response establish that, at some time, appellee requested appellant’s termination 

during negotiation of a divorce action and, at some time, Mr. Cecchini agreed with that 

request, but there is no admission Mr. Cecchini acted on appellee’s request. The 

allegations and the answer cannot reasonably be construed as an admission that 

appellee sought and procured appellant’s termination or that there is a causal 

connection between appellee’s request and any damages suffered by appellant. 

{¶35} Appellant third assignment of error is overruled. 

{¶36} Because appellant’s third and fourth assignments of error address the issue 

of privilege, we consider them simultaneously. 

{¶37} These assignments highlight appellant’s mistaken belief that privilege is an 

affirmative defense in the context of a complaint for intentional interference with an 

employment relationship. The burden of proving lack of privilege rests with appellant. 

*** Ohio law places the burden on the plaintiff to demonstrate improper 

conduct in order to prevail on a claim of tortious interference with a contract 

instead of requiring a defendant to assert and prove privilege in defense of 
Stark County, Case No. 2017CA00166 14 

such a claim. Columbia Dev. Corp. v. Krohn, 1st Dist. No. C1300842, 2014-

Ohio-5607, 2014 WL 7277755, ¶ 25 (“Ohio law places the burden of proving 

a lack of privilege or justification upon the plaintiff.”). 

Long v. Mt. Carmel Health Sys., 10th Dist. Franklin No. 16AP-511, 2017-Ohio-5522, ¶ 27. 

{¶38} “*** the law in this state imposes the burden of proving lack of privilege or 

justification upon the plaintiff.” Doyle v. Fairfield Machine Co., 120 Ohio App.3d 192, 217, 

697 N.E.2d 667(11th Dist.1997), (citation omitted). 

{¶39} The trial court’s recognition that that there is no precedent on point is not a 

bar to the court’s consideration of the possibility that the appellee’s actions were 

privileged. Nevertheless, it is clear that it was the appellant’s burden to establish that the 

actions taken by appellee were not privileged and appellant failed to address this issue 

before the trial court. We have reviewed the record and concluded the appellant 

presented no argument or evidence to support a conclusion appellee’s actions were not 

privileged. Because appellant did not make this argument before the trial court, we decline 

to consider it at this juncture. Shrock Prefab, L.L.C. v. Steelrite Sys. USA, Inc., 5th Dist. 

Holmes No. 15 CA 20, 2016-Ohio-3410, ¶ 33. 

{¶40} Appellant’s third and fourth assignments of error are therefore overruled. 

{¶41} Appellant’s fifth assignment of error is an incomplete statement of the trial 

court’s order and, most importantly, the assignment contains language which supports 

our overruling it. 

{¶42} The trial court’s ruling contains the following sentences: “Cecchini was 

permitted to terminate plaintiff at his discretion, for any or no reason at all. Moreover, 

there is no indication that plaintiff’s termination was predicated upon unlawful grounds.” 
Stark County, Case No. 2017CA00166 15 

The trial court did not simply conclude that appellant was an at-will employee subject to 

be terminated at any time. Nor did the trial court hold that an at-wlll employee cannot 

pursue a claim for tortious interference with employment. The trial court did hold that 

regardless of the appellee’s employment characterization, there was nothing in the record 

to establish that his termination was based upon unlawful grounds. The appellant’s 

attempt to interpret the trial court’s findings to support his assignment of error is not 

persuasive. 

{¶43} Appellant’s reference to this portion of the court’s opinion as “dicta” provides 

a second basis for our overruling the assignment of error. As dicta, that comment by the 

trial court is not considered necessary to the decision in the case. 

Stated differently, dicta or dictum is an observation or statement in an 

opinion by the writing judge—***—which is unnecessary to resolution of the 

issues in the case ***.” Black's Law Dictionary 1102 (8th Ed.2004) (“a 

judicial comment made while delivering a judicial opinion, but one that is 

unnecessary to the decision in the case and therefore not precedential.”); 

see also Duck v. Cantoni, 4th Dist. No. 11CA20, 2012–Ohio–351, ¶ 25. 

Peters v. Tipton, 7th Dist. Harrison No. 13 HA 10, 2015-Ohio-3307, ¶ 6. 

{¶44} Consequently, if we accept the appellant’s characterization of the trial 

court’s observation as dicta, that comment does not state the holding of the trial court and 

is not subject to reversal. Assuming, arguendo, that the statement is not dicta, we would 

find that the trial court concluded that regardless of whether appellant was an at-will or 

contract employee, there was nothing in the record to establish that his termination was 

the result of tortious interference with the appellant’s employment. 
Stark County, Case No. 2017CA00166 16 

{¶45} For those reasons, appellant’s fifth Assignment of error is overruled. 

{¶46} We also find the grant of summary judgment was correct for a reason not 

addressed by the trial court. Myers v. Evans Products Co., 5th Dist. Fairfield No. 25-CA84, 1984 WL 7610, *1 (Dec. 14, 1984). The record lacks any evidence of a causal connect 

between the appellee’s alleged acts and the termination of the appellant’s employment. 

Appellee has denied that she took any action that resulted in appellant’s termination and 

stated that his termination was not part of her divorce decree. (Appellee’s affidavit 

attached to her motion for summary judgment) Appellant contends appellee has admitted 

the connection in her amended answer, but as we have addressed, appellant’s 

interpretation of the appellee’s answer cannot be reasonably construed to be an 

admission that supports a causal connection. In fact, the appellee’s answer expressly 

denies causation. Appellant offered 3 letters, contending those letters demonstrate a 

causal connection, but the letters have not been authenticated by their authors and the 

relevant statements are hearsay which we decline to consider. 

{¶47} Appellant has also offered descriptions of two phone calls, but the calls have 

not been authenticated pursuant to the requirements of the Evid.R. 901(B)(6) and we will 

not consider them. Consequently, the record lacks any reliable evidence regarding a 

causal connection between the alleged acts of appellee and appellant’s termination. 

{¶48} Appellant acknowledges his obligation to establish causation on page one 

of his Motion for Summary Judgment: “Davila maintains after summary judgment is 

entered the sole issues remaining for determination by the jury would be that of causation 

and damages.” (Motion for summary judgment of plaintiff, page 1). No Civ.R. 56 quality 

evidence was provided by appellant after he filed the motion for summary judgment that 
Stark County, Case No. 2017CA00166 17 

would obviate the need for proof of causation. Further, appellant admitted other causes 

for his termination. He acknowledged that Mr. Cecchini terminated employees over the 

age of 45, that he was over the age of 45 on the date he was terminated and that he 

asserted a claim with the Ohio Civil Rights Commission on those grounds. (Davila 

deposition, page 4, lines 11-12; page 40, lines 4-21). Appellant admitted that Mr. Cecchini 

stated that appellant’s alleged involvement in distributing campaign literature was “one of 

the factors in terminating his relationship with Plaintiff.” (Amended Complaint, paragraph 

107). The appellant’s acknowledgment of his obligation to prove proximate cause 

between the appellee’s action and his termination, the lack of supportive evidence for that 

element of his claim and his admission of other causes for his termination support 

summary judgment in favor of appellee on this issue. 

{¶49} We find, therefore, that in addition to the reasons set forth by the trial court, 

summary judgment is appropriate because, in construing all of the appropriate 

documentation in a light most favorable to appellant, there are no genuine issues of 

material fact with regard to proximate cause and appellee is entitled to judgment as a 

matter of law as a result of the lack of any evidence establishing a causal connection 

between the alleged acts of the appellee and the termination of appellant. 

 
Stark County, Case No. 2017CA00166 18 

{¶50} The decision of the Stark County Court of Common Pleas is affirmed. Costs 

assessed to appellant. 

By: Baldwin, J. 

Delaney, P.J. and 

Earle Wise, J. concur.