COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68297 JOHN R. MASTER, ET AL. : : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION JACK G. SWORD, ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : NOVEMBER 9, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-263484 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellees: HAROLD POLLOCK, ESQ. CAROLE SISKOVIC, ESQ. BLAKE DICKSON, ESQ. Fillo & Siskovic Harold Pollock Co., L.P.A. 1520 Standard Bldg. 1707 Terminal Tower 1370 Ontario Street Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, C.J. Plaintiff-appellants, John Master and John Nix appeal the trial court's ruling granting defendant-appellees, Jack and Carole Sword's motion for summary judgment. Master is an eighty-two year old retired physician. Nix is a licensed securities broker. Master and Nix reside at 5800 Brookside Drive, Cleveland, Ohio. The Swords reside at 5801 Brookside Dr. Master owns an undeveloped parcel of property located adjacent to 5801 Brookside Dr. ("parcel"). Over the years, the Swords expressed to Master a desire to acquire the parcel. On June 28, 1993, Master and Nix entered into a general partnership to develop the property. Pursuant to that agreement Master conveyed the property to the partnership. Master claims that on December 1, 1993, the Swords became aware that the parcel had been conveyed to the partnership and began contacting Master about purchasing the parcel. Master informed the Swords that they needed to speak to Nix about the parcel. The Swords then spoke with Nix concerning the parcel. Master asserts that the Swords implied that Nix had taken advantage of him in order to gain control over the property. The Swords deny this accusation. Master and Nix claim that the Swords contacted city of Cleve- land Councilman Patrick J. O'Malley and other Brookside Drive resi- dents and informed them that Nix had been or was attempting to - 3 - defraud Master out of his assets and that Master may be incom- petent. Again, the Swords deny this accusation. Master and Nix assert that O'Malley then contacted the Cleveland Police Department Fraud Unit concerning the Swords' false allegations about Master and Nix. As a result, the Fraud Unit sent two detectives to interview Master. Master and Nix maintain that in an effort to acquire the par- cel, the Swords held a meeting at their home on the evening of December 12, 1993. The meeting was attended by concerned residents of Brookside Dr. and Master and Nix contend that the Swords repeat- ed to all persons assembled at the meeting that Master was incompe- tent and that Nix was defrauding Master. The Swords denythis alle- gation, and claim that the meeting was held to discuss the impact the development of the parcel would have on Brookside Dr. Furthermore, Master and Nix have deposed at least thirteen Brook- side Dr. residents in attendance at the meeting and all state that Master's competency and the arrangement between Master and Nix were not discussed. Master further alleges that the Swords or someone they were aligned with contacted the Cuyahoga County Probate Court and asserted that Master may be mentally incompetent. An investigator employed by the probate court interviewed Master Master and Nix's complaint alleges the Swords committed (a) defamation by making statements to other Brookside Dr. residents and to persons to the effect that Master is or may be mentally - 4 - incompetent and that Nix was "a con man who was attempting to defraud Master out of his assets;" (b) invasion of privacy by causing the Fraud Unit of the Cleveland Police Department and an investigator of the probate court to investigate them; and (c) intentional infliction of emotional distress because the acts of the invasion of privacy allegation were outrageous. Master and Nix deposed 13 persons including the Swords and the residents of Brookside Dr. It is undisputed that the depositions failed to show any evidence of the defamatory statements and/or of the invasion of privacy claims. Master and Nix filed a second round of depositions notices. The Swords filed a motion for protective order to prohibit said depositions. The Swords also filed a motion for summary judgment. The trial court granted the Swords' motion for protective order and subsequently granted the Swords' motion for summary judgment. Master and Nix's first assignment of error states: I. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANT- ING APPELLEES' MOTION FOR SUMMARY JUDGMENT WHERE APPELLANTS WERE NOT GIVEN THE OPPOR- TUNITY TO CONDUCT FULL AND COMPLETE DISCOVERY. Master and Nix maintain that the trial court abused its discretion in granting the Sword's motion for summary judgment where they were not given the opportunity to conduct full and complete discovery. Specifically, Master and Nix assert that without the benefit of the second round of depositions which the trial court would not permit them to take they were unable to - 5 - present all of the facts necessary for a full and fair opportunity to oppose the Sword's motion for summary judgment. The trial court stated in its journal entry the following: This Court is well aware that the policy contemplated by the Ohio Rules of Civil Procedure is one of liberal discovery. However, the rules are not meant to facilitate or countenance discovery that is unduly burdensome or relating to matters not directly relevant to the controversy at issue. See Ohio Civil Rule 26. Matters sought to be discovered must be relevant to the matters in issue or reasonably calculated to the discovery of admissible evidence. See Ohio Civil rule 26(B)(1). This Court notes that the plaintiff has taken many depositions and at least 13 depositions have been filed with this Court as a matter of record. It would seem difficult for any party to assert that discovery has been unreasonably limited, and this Court has no intention of doing so. * * * * * * some of the same issues are or were at issue in related proceedings before the Probate Court (guardianship) and U.S. District Court (wiretapping, conspiracy, conversion, invasion of privacy, defamation, and intentional infliction of mental distress). This Court cannot and will not permit any party to use this Court as a vehicle of convenience simply to implement prosecution or defense of cases in other courts. * * * As to [the deposition of] Susan Sazima, Ramona Sazima and William Cunningham: Neither Sazima is a party to this case. Susan Sazima is a police officer, is a party in the Federal case, and her testimony is obtainable in that lawsuit. * * * Ramona Sazima and William Cunningham are alleged by plaintiffs to have information pertaining to Susan Sazima's actions and are likewise not directly - 6 - related to the case at bar in this Court and, therefore, will not be compelled by this Court. As to Paul Deamon and his attorney, Jack Abel: The mere fact that plaintiff believes that Deamon "may have conspired to obtain information about plaintiff and his estranged wife" is not sufficient to make this witness relevant or necessary. Rebekah Deamon is not a plaintiff in this case, and Paul Deamon is not a defendant. Neither are alleged to have committed acts that are in controversy in the present case. * * * Further, it is not alleged that lawyer Jack Abel has information concerning any of the alleged acts which are the subject of this case. * * * As to Michael Heryak, Jr. Michael Heryak, Sr. (second deposition), Lillian Nesebar and Thomas Osborne: All of these individuals are alleged to have additional information concerning the alleged wiretap. These depositions relate to the Federal case and need to be dealt with there. * * * The law is clear in Ohio that a court has the discretion to cut off discovery after extensive discovery has already taken place. Huebner v. Miles (1993), 87 Ohio App.3d 525. The Supreme Court of Ohio held, the term "abuse of discretion" connotes more than an error of law; it implies that the court acted unreasonably, arbitrarily or unconscionably. State v. Adams (1981), 62 Ohio St.2d 151, 157. Under the circumstances we cannot say that the trial court's decision to cut off discovery was so arbitrary, unreasonable, or unconscionable as to connote an abuse of discretion. - 7 - Accordingly, Master and Nix's first assignment of error is overruled. Master and Nix's second assignment of error states: II. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHERE THERE WERE GENUINE ISSUES OF FACT, IN PARTICULAR ISSUES OF CREDIBILITY OF KEY WITNESSES. Master and Nix assert that the trial court erred when it granted the Swords' motion for summary judgment because there were genuine issues of fact, in particular issues of credibility of key witnesses. Specifically, Master and Nix claim that the depositions taken in this case revealed inconsistencies among the neighbors' testimony and therefore summary judgment should not have been granted. Master and Nix also maintain that the trial erroneously concluded that no material issues existed to their invasion of privacy and intentional infliction of emotional distress claims. It is axiomatic that a motion for summary judgment shall only be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. - 8 - Moreover, upon motion for summary judgment pursuant to Civ. R. 56, the burden of establishing that material facts are not in dispute, and that no genuine issue of fact exists, is on the party moving for summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66. However, in that Civ. R. 56(E) requires that a party set forth specific facts showing that there is a genuine issue for trial, such party must so perform if he is to avoid summary judgment. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, at paragraph seven of the syllabus. Viewing the underlying facts in a light most favorable to Master and Nix we conclude a genuine issue of material fact does not exist. Master and Nix conceded in their first assignment of error and in their motion in opposition to the Swords' motion for summary judgment that they could not prove their case with the evidence they had. Furthermore, with respect to the incon- sistencies Master and Nix stated in their brief in opposition that they are convinced that the parties lied during their depositions. Master and Nix failed to show the trial court and this court where the inconsistencies are in the depositions. After a thorough review of the record, we do not find that the parties deposed lied or that their testimony is inconsistent. - 9 - Accordingly, Master and Nix's second assignment of error is overruled. Judgment affirmed. - 10 - It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J. KARPINSKI, J., CONCUR CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .