COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71711 CARL WILLIAM BAYNARD, dba ) JOURNAL ENTRY BBF BUSINESS SYSTEMS ) ) AND Plaintiff-Appellee ) ) OPINION -vs- ) ) OAKWOOD VILLAGE, ET AL. ) ) Defendants-Appellants ) Date of Announcement of Decision October 16, 1997 Character of Proceeding Civil appeal from Court of Common Pleas Case No. 283652 Judgment Affirmed Date of Journalization Appearances: For Plaintiff-Appellee: For Defendants-Appellants: RUFUS SIMS, ESQ. PAUL A. GRAU, ESQ. Glin Medical Building Director of Law Suite 209 STEPHEN M. KLONOWSKI, ESQ. 16104 Chagrin Blvd. Reddy, Grau & Meek Shaker Hts., Ohio 44120 Castleton Building 5306 Transportation Blvd. Garfield Hts., Ohio 44125 2 JAMES M. PORTER, J.: Defendants-appellants Oakwood Village and its Mayor Gary V. Gottschalk appeal from the judgment of the trial court following a bench trial in which the court denied defendants' counterclaim to recover sums paid to plaintiff-appellee Carl W. Baynard for computer services supplied the Village. Defendants claim the trial court improperly limited their discovery and that the judgment was against the manifest weight of the evidence. We find no error and affirm. Plaintiff originally filed his complaint on January 20, 1995, against defendants seeking $5,000 compensatory damages for additional work and $25,000 in punitive damages against Mayor Gottschalk. Plaintiff claimed breach of a "pre-existing verbal contract," bad faith, unjust enrichment and personal injury from a physical assault by the Mayor. Defendants generally denied the allegations, alleged affirmative defenses of illegality and lack of consideration against plaintiff's contract claims, and filed a counterclaim for $10,500 for return of the monies paid to plaintiff for his computer services under the void contract. Defendants also asserted that the plaintiff overbilled the Village for the services he provided. During the discovery phase of this action, the Village requested five years of documents relating to plaintiff's tax, personal, business income, financial and banking records. Plaintiff objected to their relevance. Defendants moved to compel production of documents, answers to interrogatories and for 3 sanctions. On September 7, 1995, in a written opinion, the trial court ordered certain answers to interrogatories, but ruled the requests for tax, financial and banking information were not relevant to the issues. Although the court did not squarely address the request for production of documents, it indirectly did so by stating as follows: The first two contractual and quasi- contractual counts are against the corporate defendant. Interrogatory Nos. 8, 9, 10 and 11 essentially attempt to delve into the plaintiff's income and bank accounts. There is no relevancy whatsoever based on the causes of action to these discovery requests. Absent a claim for lost wages in the assault claim, as the Court views the causes of action and the issues between the parties, the plaintiff could be rich as Rockefeller or poor as a church mouse and his causes of action would remain essentially the same. (Judgment Entry, Sept. 7, 1995 at 1). Defendants made no further request for the documents in question. On December 13, 1995, the trial court granted defendants' motion to dismiss the complaint for plaintiff's failure to provide the ordered discovery and set the case for trial on the counterclaim only. The dismissal of the complaint is not at issue on this appeal. The case went to bench trial on the counterclaim on March 27 and 28, 1996. The evidence at trial showed that plaintiff performed work for the Village from April 1993 until he was terminated by the Mayor in July of 1994. His work consisted of installing computers, programming computers and training Village personnel on the use of the computers. He performed this function for three different 4 departments: the Mayor's office, the finance department and the building department. The Village does not contest the work performed for the building department as this contract was entered into between plaintiff and the head of the building department, Tony Bomboulis. The Village does contest the work performed by the plaintiff for the Mayor's office and the finance department, as it contends that Barbara Francis, plaintiff's sister-in-law, hired him for these projects in violation of R.C. 2921.42, which bars public officials from having an interest in contracts with certain family members or business associates. In the alternative, the Village claimed that even if the contract was found to be valid, plaintiff was overpaid for his services and/or did not perform the work. Plaintiff contended that the work was approved by the Mayor. In early 1993, Barbara J. Francis was appointed Finance Director for the Village. Ms. Francis' sister, Cassandra, was married to plaintiff. Ms. Francis testified that, with the approval of the Mayor, she hired her brother-in-law, the plaintiff, to perform certain computer work for the Village. She claimed she advised the Mayor that plaintiff was her brother-in-law. The Mayor denied authorizing the hiring of plaintiff or knowing he was Ms. Francis' brother-in-law. The evidence showed plaintiff worked for the Village under the name BBF Business Systems, a sole proprietorship. Cassandra Baynard, plaintiff's wife and the finance director's sister, was 5 on BBF invoice/letterheads as vice-president/treasurer. However, plaintiff testified that he performed the accounting and computer services for BBF and that he was the only employee, agent or representative. He claimed he only placed his wife's name on the letterhead to make the company look larger. At trial, the Village attempted to establish that same day payments made to plaintiff were not the norm for other vendors, thereby displaying favoritism by the finance director towards her brother-in-law. However, Alzonia Rice, a senior finance clerk for the Village for over eleven years, stated that "same day payments were not highly unusual. If there's a vendor that comes in and asks for payment, we will do it that day." Ms. Rice also stated she first met plaintiff in 1993, and Ms. Francis introduced him as her brother-in-law. Ms. Rice stated that from 1993 plaintiff was there every day, in and out of different departments, including the Mayor's office and the building department. Ms. Glynis Deadwyler, the Mayor's former secretary, verified that when she worked for the Village, every contract had to have the approval of the Mayor; and that although she was not sure of the date she thought that she and the mayor were introduced to plaintiff in the Spring of 1994 by Ms. Francis as Ms. Francis' brother-in-law. Ms. Deadwyler testified that plaintiff worked for the Village every day, in the Mayor's office, finance department and building department. On November 13, 1996, the trial court held in a nine page opinion that R.C. 2921.42 did not void the contract for plaintiff's 6 work because Ms. Francis was not barred from contracting with her brother-in-law since she did not live with him; that Ms. Francis was not the plaintiff's business partner or associate in BBF Business Systems; and that Ms. Francis did not profit from plaintiff's contract with the Village. (Judgment Entry at 6). In addition, based on the evidence and the credibility of the witnesses, the trial court held the Village was not entitled to recover a money judgment on its claims of overpayment. (Judgment Entry at 8). This timely appeal ensued. We will address defendants' assignments of error in the order presented. I. THE TRIAL COURT ERRED WHEN IT REFUSED TO COMPEL CERTAIN ANSWERS TO INTERROGATORIES AND THE PRODUCTION OF DOCUMENTS RELATING TO PLAINTIFF-APPELLEE'S PERSONAL AND BUSINESS RELATED INCOME, FINANCIAL, BANKING AND BUSINESS RECORDS. Defendants' essentially contend that the court's failure to allow discovery of plaintiff's income tax, financial and banking information thwarted their ability at trial to prove that Ms. Francis, the finance director, had an improper business relationship with plaintiff or her sister. At the time defendants filed their first set of interrogatories and request for documents, the complaint was still in issue. The Village's counterclaim sought the repayment of $10,500 paid to plaintiff in 1994, for computer services rendered pursuant to a pre-existing verbal contract. 7 Defendants' interrogatories and request for production filed April 3, 1995 requested the plaintiff to disclose and produce the following documents: Copies of plaintiff's and BBF's federal and state income tax returns for the tax years 1990 to present; Copies of clients lists beginning January 1990 to the present; Copies of all meetings of the board of directors, shareholders, partners, and/or owners of BBF Business Systems for the past five years; Copies of BBF Business Systems' bank statements, canceled checks and check stubs showing all of its transactions and disbursements of money from the inception of its business life to the present date. (Defdts' First Request, qq1-6, 14-15). In his response to the interrogatories, plaintiff objected to the interrogatories addressed to the same subjects as not relevant to the present case. The trial court, as previously noted, agreed and sustained the objections in denying defendants' motion to compel in part. Following trial, the court elaborated on this issue as follows in its Judgment Entry at 6-7: The Village sought the income tax records of Plaintiff and BBF Business Systems during pretrial discovery and filed a motion to compel their production. The court refused to compel them to be produced by Plaintiff because the Court deemed them irrelevant to the action. The Village had not explained their relevancy in its motion, made no subsequent argument substantiating their relevancy and made no further attempt to obtain their discovery. Now after trial in 8 the defendants' brief the Court is presented for the first time with evidence and argument that make such records relevant. The Village's burden was to seek the records and advance their relevancy arguments prior to trial, especially so after the Court refused to compel their production. (Judgment Entry at 6-7). We have carefully reviewed the defendants' motion to compel discovery and for sanctions filed August 9, 1995 and agree with the trial court's analysis stated above. Defendants made no showing or offered any explanation why the requested documents were relevant to the issues in the case at that time. There was no mention in defendants' motion papers of the defendants' claim that said documents were necessary to probe the financial or business relationship between the finance director and the plaintiff or his wife. Civ.R. 26(B) provides in relevant part: (B) Scope of discovery. Unless otherwise ordered by the court in accordance with these rules, the scope of discovery is as follows: (1) In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ***. It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. "For discovery to be allowed, relevance to the subject matter must be shown." 4 Moore's Federal Practice (1987-1988) qq25-26 at 26-101. While the scope of relevance in discovery is broad, it is not without limits. See 4 Moore's Federal Practice (1987-1989) qq 9 26-56 at 26-97. This Court recognized the parameters of these principles in Tschantz v. Ferguson (1994), 97 Ohio App.3d 693, 715: Civ.R. 26(B)(1) grants broad discovery powers to parties. Although the rule limits the matter to be discovered to that which is relevant to the subject matter, Civ.R. 26(B)(1) also provides for discovery of information reasonably calculated to lead to the discovery of admissible evidence. The test for relevancy under Civ.R. 26(B)(1) is much broader than the test to be utilized at trial. It is only irrelevant by the discovery test when the information sought will not reasonably lead to the discovery of admissible evidence. Icenhower v. Icenhower (Aug. 14, 1975), Franklin App. No. 75AP-93, unreported, at 2; see, also, State ex rel. Fisher v. Rose Chevrolet(1992), 82 Ohio App.3d 520, 523, 612 N.E.2d 782, 784. In the instant case, Ferguson did not claim privilege with regard to the information sought to be discovered by Tschantz. Rather, he relied upon Civ.R. 26(C), which reads: (C) Protective Orders. Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; *** (4) that certain matters not be inquired into, or that the scope of discovery be limited to certain matters; *** (6) that a deposition after being sealed be opened only by order of the court ***. (Emphasis added.) Pursuant to this rule, a trial court has inherent authority to regulate discovery. State ex rel. Grandview Hosp. Ctr. v. Gorman (1990), 51 Ohio St.3d 94, 554 N.E.2d 1297. Civ.R. 37 reinforces this inherent authority by affording courts the ability to impose sanctions upon these persons who unjustifiably seek or resist discovery. 10 The 1970 Staff Note to Civ.R. 26 referenced the comment to the Federal Advisory Committee statement as follows: All provisions as to scope of discovery are subject to the initial qualification that the court may order otherwise in accordance with these rules. [Rule 26(c) *** confers broad powers on the courts to regulate or prevent discovery even though the materials sought are within the scope of 26(b), and these powers have always been freely exercised. ***]. The Staff Note to Civ.R. 34 likewise adds dimension to the procedural context as follows: The rule is designed, like SS2317.33 and 2317.35, R.C., to operate extrajudicially. See, 1967 Prelim. Draft 70. The court does not automatically consider every Rule 34 request, but is concerned only when there is noncompliance or an objection or both. As in Rule 33 the burden is upon the party seeking discovery. He must make a motion under Rule 37 to compel discovery or to invoke the Rule 37 sanctions. As noted, the scope of relevancy in such matters is within the broad discretion of the trial court. See, also State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55; Glick v. Marler (1992), 82 Ohio App.3d 752, 758; Shoenfelt v. Ohio Civ. Rights Comm. (1995), 105 Ohio App.3d 373, 379. Once the plaintiff objected to the relevancy of the information or documents defendants requested, the burden was on defendants to make a prima faciashowing of relevance, i.e., how discovery of plaintiff's tax returns or personal, financial or business records for the past five years was reasonably calculated to lead to the discovery of admissible evidence that had any bearing on the issues of whether plaintiff overcharged the Village for his computer services. 11 Defendants failed to make any showing satisfactory to the trial court in their motion to compel under Civ.R. 37. Customary motion practice dictates that the burden is on the moving party to persuade the court of the merits of its position and overcome the objections of its opponent. It is not enough to simply point out that the opponent has resisted the discovery. See Kool, Mann, Coffey & Co. v. Castellini Co. (Aug. 2, 1995), Hamilton App. No. C-930951, unreported at 10 ( trial court's denial of the appellants' motion to compel the production of documents did not constitute an abuse of discretion, because the appellants have failed to demonstrate the relevance of the documents sought to be discovered to the subject matter of their complaint. ). We will not second guess the trial court's ruling on discovery issues in the absence of an abuse of discretion. We find none here. If defendants were prejudiced by the failure to obtain detailed financial information from the plaintiff, this was a matter that should have been pressed before trial, not afterwards. Assignment of Error I is overruled. II. THE TRIAL COURT'S JUDGMENT ENTRY IN FAVOR OF PLAINTIFF-APPELLEE AND AGAINST DEFENDANT- APPELLANTS ON DEFENDANT-APPELLANTS' COUNTER- CLAIM IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The Village challenges the trial court's judgment on the weight of the evidence. It principally asserts that the contracts for computer consulting services between plaintiff and the Village during 1993 and 1994 should be found to be "void ab initio" because the contracts were made in violation of R.C. 2921.42(A). In the 12 alternative, the Village claims that the plaintiff received overpayment for work. We find no merit to these contentions. Our scope of review on an attack on the weight of the evidence was recently described in Arnett v. Midwestern Ent., Inc. (1994), 95 Ohio App.3d 429, 431: We initially note that a judgment supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. See C.E. Morris Co. V. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280, 8 O.O.3d 261, 262, 376 N.E.2d 578, 579. In addition, under a manifest weight of the evidence test, the court of appeals is guided by the presumption that the findings of the trial court are correct. Seasons Coal Co. v. Cleveland(1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 411, 461 N.E.2d 1273, 1276. Thus, if there is competent credible evidence going to the trial court's finding that the retail buyer's order does not constitute a valid and enforceable contract this court must affirm the judgment of the trial court. R.C. 2921.42(A)(1), a criminal statute, states as follows: (A) No public official shall knowingly do any of the following: (1) Authorize, or employ the authority or influence of his office to secure authorization of any public contract in which he, a member of his family, or any of his business associates has an interest. In the present case, it is undisputed that Ms. Francis, the finance director of the Village, was a public official. However, plaintiff contends that none of the other requirements of the statute were met based on the evidence at trial. We agree, as did the trial court. 13 The trial court properly found that while Ms. Francis hired plaintiff to perform computer work for the Village, there was no credible evidence that Ms. Francis or her sister, Cassandra Baynard, wife of plaintiff, were part of or had an interest in BBF Business Systems or that either of them participated in the contract plaintiff had with the Village. (Judgment Entry at 6-7). In support of defendants' contention that Ms. Baynard was active in BBF Business Systems defendant presented invoices, to wit: Defendants' Exhibits 5 through 22, from December 3, 1993 through June 10, 1994, which listed Mrs. Baynard as Vice President/ Treasurer of BBF Systems. However, the trial court concluded that Mrs. Baynard categorically denied that she had any participation with BBF Business Systems other than merely being plaintiff's spouse and being on the letterhead to portray that BBF was more than a one person business. (Journal Entry at 7). Later versions of the said letterhead bore only Carl William Baynard's name. (Journal Entry at 7). Defendants also argue that two checks plaintiff wrote to Ms. Francis in the amount of $75.00 from a personal joint account with Mrs. Baynard in April 1993, endorsed by Ms. Francis somehow symbolized Ms. Francis' involvement with BBF Business Systems. However, the account and its checks did not refer to BBF Business Systems and appeared to be from a personal joint checking account. (Journal Entry at 4). The Village produced no evidence that Ms. Francis was either receiving kickbacks from Mrs. Baynard or plaintiff, or providing any services for BBF Business Systems. At 14 trial, plaintiff presented invoices for each request for payment for services rendered. (Def. Ex. 24). The law of Ohio does not prohibit public officials from hiring a brother-in-law unless such relative resides with the public official in question. 1980 Ohio Ethics Commsn. Ops. Nos. 80-001, 90-010; Walsh v. Bollas (1993), 82 Ohio App.3d 588, 591; Jones v. Rookfield Twp. Trustees (June 30, 1995), Trumbull App. No. 92-T- 4692, unreported at 8. The Village presented no evidence that the plaintiff and Ms. Francis ever resided in the same household. (Judgment Entry at 7). The Village attempted to assert that plaintiff's wife, Cassandra, was a participant in BBF Business Systems, thus, Ms. Francis entering into a contract with BBF violated Ohio law because Ms. Francis was contracting with her sister's business. The trial court found, however: The Court has carefully considered all the evidence bearing on this issue and its credibility and persuasiveness and is not convinced by a preponderance of the evidence that Francis was plaintiff's business partner or associate in BBF Business Systems or that Francis profited from plaintiff's contract. (Journal Entry at 7). Having reviewed the same trial record, given the deference to the trial court's findings, we cannot conclude that the trial court's judgment finding the contract valid is against the manifest weight of the evidence. We also find no merit to defendants' contention that the plaintiff was overpaid for his services. Only one witness, Bernice Miller, testified that the plaintiff did not spend as much time 15 training her as he represented on his invoices. The invoices and the rest of the testimony regarding the payments to plaintiff simply did not conclusively show he was overpaid. Based on such inconclusive evidence, we find the trial court did not err in failing to find the plaintiff was overpaid by the Village. Assignment of Error II is overruled. Judgment affirmed. 16 It is ordered that appellee recover of appellants its 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. DAVID T. MATIA, P.J., and SPELLACY, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .