COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73740 RONALD T. SMEDLEY : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION DUNKIN DOUGHNUTS, INC., et al. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT DECEMBER 17, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-303093 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: RONALD SMEDLEY, Pro Se P. O. Box 22535 Beachwood, Ohio 44122 For Defendant-Appellee: MARK R. CHULICK, ESQ. Kuepper Walker Hawkins & Chulick 480 Skylight Office Tower 1660 West Second Street Cleveland, Ohio 44113 - i - For DaSilva Doughnuts, et al.: JOHN J. CARTELLONE, ESQ. 1015 Euclid Avenue 3rd Floor Cleveland, Ohio 44115 For North Randall Village of: MICHAEL J. SMAKULA, ESQ. Ward & Associates 1265 West Sixth Street Fourth Floor Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, A.J.: Appellant Ronald Smedley appeals a decision by the trial court in favor of appellees Dunkin Doughnuts, Inc., DaSilva Donuts, Inc., and Arnold DaSilva in his action for false arrest, abuse of process, violation of civil rights, public embarrassment and verbal abuse. Smedley assigns the following three errors for our review: -2- I. THE TRIAL COURT ERRED IN OVERRULING THE MOTION OF THE PLAINTIFF TO COMPEL PRODUCTION OF EVIDENCE BY THE DEFENDANT DUNKIN DOUGHNUTS, INC. II. THE TRIAL COURT ERRED IN GRANTING THE MOTION OF THE DEFENDANTS FOR SUMMARY JUDGMENT. III. THE TRIAL COURT ERRED IN OVERRULING THE MOTION FOR RELIEF FROM JUDGMENT FILED BY THE PLAINTIFF. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On February 6, 1996, Smedley was eating in a Dunkin Donuts store in North Randall, Ohio. While talking to several of his friends, Smedley was approached by Ronald DaSilva, the owner of the restaurant. DaSilva asked Smedley to leave the restaurant. When Smedley refused to leave, DaSilva contacted North Randall police. Two North Randall police officers, Cherria Fleming and Robert Jarvis, arrived. DaSilva told the officers that he wanted Smedley out of his store and did not want him to come back. When asked why, DaSilva replied that Smedley had made racial comments about DaSilva's people or culture. Officers asked Smedley to step outside the store. Smedley complied and asked the officers what the problem was. The officers explained that DaSilva wanted him out of the store. Smedley began to tell the officers what happened, then stopped and asked if he was under arrest. The officers told him he was not. Thereafter, Smedley replied that if he was not under arrest, he was going back inside the store. The officers told Smedley not to re-enter the store but he attempted to -3- do so anyway. He was then arrested for trespassing and taken to the North Randall police station. At the station, Smedley signed a release of all claims waiver and was released without being charged. DaSilva also signed a personal statement form issued by the North Randall Police Department in which he reported that Smedley came into the Dunkin Donuts store every day to see what type of trouble he can start and habitually discussed racial issues in the store. On February 9, 1996, Smedley filed suit against DaSilva, Dunkin Donuts, DaSilva Donuts Inc., and DaSilva Donuts Inc. dba Dunkin Donuts alleging false arrest, abuse of process, violation of civil rights, public embarrassment, and verbal abuse. On January 25, 1997, Smedley filed suit against the City of North Randall, Ptl. Fleming, Ptl. Jarvis, and unknown police supervisor John Doe for false arrest. On April 24, 1997, the two cases were consolidated. On July 21, 1997, Smedley filed a motion for summary judgment alleging that DaSilva's statement to the police indicated no conduct that would justify his removal from the restaurant. He argued that DaSilva's decision to remove him from the restaurant was motivated by a disagreement with DaSilva's ideas. North Randall filed its motion for summary judgment on October 10, 1997. North Randall argued that Smedley failed to establish the elements of false arrest, that he failed to show that he was discriminated against because of his race, that he failed to -4- properly name North Randall Police Supervisor Robert Bolton as a defendant in the action, and that North Randall and the individual police officers were immune from liability under R.C. 2744. DaSilva and DaSilva Doughnuts moved for summary judgment on October 10, 1997, arguing that DaSilva had a legitimate non- discriminatory reason for asking Smedley to leave the doughnut shop he was causing a disturbance in the restaurant by using loud abusive language. DaSilva and DaSilva Doughnuts argued that any patron, regardless of race, who created a disturbance would be asked to leave the restaurant. Attached to the motion was an affidavit signed by DaSilva in which he averred that he asked Smedley to leave the doughnut shop due to his hollering and yelling which caused such a disturbance in the restaurant that Mr. Smedley (sic) thought it was a fight. Dunkin Donuts also moved for summary judgment alleging that Smedley failed to establish a violation of the Public Accommodations Act. Dunkin Donuts also argued that it was not involved in the incident, did not know of any discriminatory acts by DaSilva against African-American customers, and was not involved in any implicit or explicit discriminatory policy or scheme. In response to the defendants' motions, Smedley denied that he was speaking in a loud voice and denied making any comment about DaSilva's race or culture. He also argued that DaSilva wanted him out of the donut shop because Smedley held racial views that were offensive to DaSilva. -5- The trial court granted the defendants' motions for summary judgment. Smedley's motions for new trial and for relief from judgment were subsequently denied. This appeal followed. In his first assignment of error, Smedley argues the trial court erred in refusing to compel Dunkin Doughnuts to produce evidence.1 Specifically, he argues the trial court should have ordered Dunkin Doughnuts to disclose information about previous lawsuits involving the company, its history of resolving discrimination complaints, and its enforcement of its anti- discrimination policy. In his motion to compel, Smedley sought an entry ordering Dunkin Donuts to produce evidence including any and all reports of discriminatory treatment by [Dunkin Donuts at 21700 Miles Road, North Randall, Ohio] , and any and all reports of any corporate corrective, or punitive action taken against any unit store underneath your auspices for discriminatory treatment of customers. Decisions on discovery issues are within the discretion of the trial court. BFI Waste Sys. of Ohio v. Garfield Hts. (1994), 94 Ohio App.3d 62, 75. In this case, the motion to compel was filed on October 23, 1997, after DaSilva, DaSilva Doughnuts, Inc., and 1 As a preliminary matter, we note that Smedley presented no authority in support of his arguments on this assignment of error. Consequently, this court could properly ignore this assignment of error. See App.R. 12(A)(2) and App.R. 16(A)(7). However, in recognition of the longstanding principle that cases are best decided on their merits, we proceed to consider Smedley's first assignment of error. -6- Dunkin Doughnuts had filed their motions for summary judgment. Although Smedley now argues the requested evidence was necessary to support his case, he failed to file a Civ.R. 56(E) motion for continuance on the ruling on the summary judgment motion. In Baynard v. Oakwood Village (October 16, 1997), Cuyahoga App. No. 71711, unreported, this court determined that, on a motion to compel, the movant must go beyond mere allegations that the opponent has failed to provide the requested discovery to establish the relevance of the requested information to the allegations of the complaint. In his motion to compel, Smedley made no argument that the requested information was necessary to his case, but argued merely that the requested documents had not been provided. Under the circumstances, we conclude the trial court did not err in failing to compel Dunkin Donuts to produce the requested documents. Smedley's first assignment of error is overruled. In his second assignment of error, Smedley argues the trial court erred in granting the defendants' motions for summary judgment. Under Civ.R. 56, summary judgment should be granted if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts, and stipulations of fact filed in the action show there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Summary judgment should be denied unless, after construing the evidence most strongly in favor of the non-movant, it appears that reasonable minds can come to but one conclusion and that conclusion -7- is adverse to the non-movant. Brown v. Scioto Cty. Bd. Of Commrs. (1993), 87 Ohio App.3d 704. When evaluating a motion for summary judgment, the court must construe the evidence most strongly in favor of the non-movant. Civ.R. 56(C). A motion for summary judgment forces the non-moving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111. R.C. 4112.02(G) provides: For any proprietor or any employee, keeper, or manager of a place of public accommodation2 to deny to any person, except for reasons applicable alike to all persons regardless of race, color, religion, sex, national origin, handicap, age, or ancestry, the full employment of the accommodations, advantages, facilities, or privileges of the place of public accommodation. In order to establish his R.C. 4112.02(G) claim, Smedley had to show that he was a member of a protected class, that his conduct was no worse than that of other Dunkin Donuts customers, and that he was expelled from the doughnut shop for conduct which would not have lead DaSilva to expel a member of the non-protected class. See Evans v. Holiday Inns, Inc. (D.Md. 1997), 951 F.Supp. 85, 89. The following exchange took place between Smedley and DaSilva's attorney, Mark Chulick, during the deposition of Arnold DaSilva: 2 R.C. 4112.01 defines a place of public accommodation to include restaurants and eating houses. -8- CHULICK: So you're saying you weren't asked to leave because you happen to be an African-American. SMEDLEY: Never said I happen to be an African-American. CHULICK: But you were never asked to leave on February 8th of 1996 because of that. SMEDLEY: I never said this is why he did it. What I said was, and it's in the amended complaint, one, the slander to the police officer, these statements have never, never occurred. Two, the false arrest. He procured the arrest by calling the officers. And three, violation of 4112 O.R.C. (DaSilva Depo. at 78.) Also, DaSilva stated that it was his policy to eject any customer who became abusive or created a disturbance. (DaSilva Depo. at 95.) He also stated that he would apply his policy equally to any customer, regardless of race. (DaSilva Depo. at 96.) He specifically stated that his decision to ask Smedley to leave had nothing to do with the fact that Smedley was African-American. (DaSilva Depo. at 101.) In light of the evidence presented, we conclude that Smedley failed to establish a prima facie case of racial discrimination. Merely invoking his race while outlining his claim does not entitle him to pursue relief. Jackson v. Tyler's Dad's Place (D.D.C. 1994), 850 F.Supp. 53, 55, affirmed (1996), 107 F.3d 923. Accordingly, the trial court correctly granted the defendants' motions for summary judgment. Smedley's second assignment of error is overruled. -9- In his third assignment of error, Smedley argues the trial court erred in overruling his motion for relief from judgment. In order to prevail on a Civ.R. 60(B) motion for relief from judgment, the movant must establish that `(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken.' State ex rel. Russo v. Deters (1997), 80 Ohio St.3d 152, 153-154; reconsideration denied (1997), 80 Ohio St.3d 1472 [citing GTE Automatic Elec., Inc. v. ARD Industries, Inc. (1976), 47 Ohio St.2d 146, at paragraph two of the syllabus.] When reviewing the trial court's decision on a motion for relief from judgment, we must apply an abuse of discretion standard. Russo at 153; BN1 Telecommunications, Inc. v. Cybernet Communications, Inc. (1997), 118 Ohio App.3d 851, 856. There is no dispute that Smedley's motion, filed just over two weeks after the trial court's judgment, was made within a reasonable time. Smedley sought relief under Civ.R. 60(B)(2) and (3) -- newly discovered evidence and fraud. In support of his motion, he attached the affidavit of store employee Monica King who averred that Smedley's conversation was not loud enough to bring someone from the back of the store. King also averred that she walked into the kitchen area of the store and told DaSilva that Smedley made a comment about white folks controlling blacks. -10- According to King's affidavit, DaSilva then went to confront Smedley in the counter service area. Smedley claimed that King's affidavit contradicted DaSilva's claim in his deposition that he approached Smedley after overhearing a loud conversation. Smedley urges that King's affidavit establishes a genuine issue of material fact which would preclude summary judgment. We disagree. It is well settled that, on a motion for summary judgment, the trial court should not weigh the evidence or assess the credibility of witnesses. Perez v. Scripps-Howard Broadcasting Co. (1988), 35 Ohio St.3d 215, 218, certiorari denied (1988), 488 U.S. 870; Studniewski v. Krzyzanowski (1989), 65 Ohio App.3d 628; Even v. Krawitz (May 1, 1997), Cuyahoga App. No. 70632, unreported. All doubts must be resolved in favor of the nonmoving party. Civ.R. 56(C). In this case, even if we assume that King's affidavit is true, it does not provide a basis for vacating the trial court's grant of summary judgment. As discussed above, Smedley has failed to demonstrate that DaSilva would not have decided to remove him from the store if Smedley had been white. A showing that DaSilva opted to remove him because of his racial comments does not suffice to show a violation of R.C. 4112.02(G) absent a showing that DaSilva would not have taken the same action against any patron who made similar comments. Smedley failed to establish that he had a meritorious claim to present if relief was granted. Consequently, the trial court properly denied his motion for relief from judgment. Smedley's third assignment of error is overruled. -11- Judgment affirmed. It is ordered that appellees recover of appellant 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 Common Pleas Court 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. Exceptions. JOHN T. PATTON, J., and JAMES D. SWEENEY,J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE 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 .