New Tech. Prods. PTY Ltd. v. Scotts Miracle-Gro Co.

1

2022-Ohio-3780

NEW TECHNOLOGY PRODUCTS PTY LTD., PLAINTIFF-APPELLANT, v. SCOTTS MIRACLE-GRO CO., ET AL., DEFENDANTS-APPELLEES.

No. 14-21-22

Court of Appeals of Ohio, Third District, Union

October 24, 2022

Appeal from Union County Common Pleas Court Trial Court No 2019-CV-0203

Craig S. Tuttle for Appellant

Marjorie P. Duffy for Appellees

OPINION

WILLAMOWSKI, J.

{¶1} Plaintiff-appellant New Technology Products Pty. Ltd. ("NTP") appeals the judgment of the Union County Court of Common Pleas, raising several arguments against the trial court's decision to grant summary judgment to the defendants-appellees Scotts Miracle-Gro Co. ("SMG") and The Scotts Company LLC ("TSC") (collectively "the Appellees"). For the reasons set forth below the judgment of the trial court is affirmed.

Facts and Procedural History

{¶2} NTP is an Australian company that "develops, manufactures, packages, and supplies products in various markets." Doc. 2. On November 8, 2019, NTP filed a complaint with the trial court. Doc. 2. NTP alleged that it had developed a proprietary wetting agent that could be combined with a lawn fertilizer, enabling the "fertilizer to better penetrate the soil * * *." Doc. 2. In 2005, NTP entered into an agreement with Scotts Australia Pty. Ltd. ("SAPL"), which is a "subsidiary or affiliate" of the Appellees. Doc. 2. Under this agreement, NTP was to combine its wetting agent with SAPL's products. Doc. 2. NTP alleges that this agreement did not allow SAPL to share this wetting agent with any of its affiliates or parent companies. Doc. 2.

{¶3} However, on October 1, 2016, NTP purchased products that were sold by the Appellees in the United States for testing. Doc. 2. NTP alleged that, on November 30, 2016, subsequent testing revealed that these products contained NTP's wetting agent. Doc. 2. NTP alleged the Appellees "pressured and/or forced * * * [SAPL] to provide the Wetting Agent Information despite knowing it was subject to the confidentiality provision in the 2005 Agreement." Doc. 2. In its complaint, NTP then raised claims of misappropriation of trade secrets, unjust enrichment, and conversion. Doc. 2.

{¶4} On January 15, 2020, the Appellees filed their answer. Doc. 12. The Appellees "den[ied] that the wetting agent * * * constitutes proprietary technology or is a trade secret, that NTP otherwise has a protectable interest in the wetting agent, or that the Scotts Defendants improperly acquired, developed, or used information relating to the wetting agent * * *." Doc. 12. The Appellees also alleged that, "by no later than early 2015, NTP [had] expressed its belief that the Scotts Defendants may have or had improperly acquired, developed, or used information" regarding this wetting agent. Doc. 12. The Appellees then raised the statute of limitations as a defense to NTP's claims. Doc. 12.

{¶5} On February 13, 2020, the Appellees filed an unopposed motion for leave to file a motion for summary judgment before discovery. Doc. 21. On February 24, 2020, the trial court granted this motion. Doc. 23. On March 23, 2020, the Appellees filed their motion for summary judgment, arguing that the four-year statute of limitations for the claims raised by NTP had run by the time the filing of the complaint. Doc. 34. The Appellees attached an affidavit ("the Bresch Affidavit") from Jeffrey J. Bresch ("Bresch") and five exhibits to their motion for summary judgment. Doc. 34, Ex. A-E. The Bresch Affidavit was filed to authenticate the documents that had been submitted as exhibits. Doc. 34.

{¶6} In his affidavit, Bresch stated that, before this present litigation had been commenced, he had served as counsel to the Appellees in their discussions with NTP. Doc. 34. He averred that the documents attached to the motion for summary judgment had been obtained by the Appellees from NTP and that the Appellees had forwarded these documents to him during the course of his representation. Doc. 34. On the basis of these attached exhibits, the Appellees argued that NTP knew or should have known about what it believed to have been misappropriation outside of the applicable statute of limitations. Doc. 34.

{¶7} On April 23, 2020, NTP filed its response to the motion for summary judgment. Doc. 37. Attached to its response was an affidavit ("the Dunbar Affidavit") from Karl Dunbar ("Dunbar"), who was the sole director of NTP. Doc. 37. On April 23, 2020, NTP also filed a motion to strike the Bresch Affidavit, arguing that Bresch's statements were not based upon personal knowledge as required by Civ.R. 56. Doc. 36. For this reason, NTP argued that the Bresch Affidavit could not authenticate the documents from NTP that were submitted by the Appellees with the motion for summary judgment and that the documents attached to the motion for summary judgment should also be stricken. Doc. 36.

{¶8} On May 8, 2020, the Appellees filed a reply brief and a motion to oppose NTP's motion to strike the Bresch Affidavit. Doc. 45. While maintaining that the Bresch Affidavit was sufficient to authenticate the exhibits attached to the motion for summary judgment, the Appellees made the following statement in their motion to oppose the motion to strike the Bresch Affidavit: "To the extent needed, Scotts hereby seeks leave to file a supplemental affidavit from Mark Sedor, the in-house lawyer at Scotts * * *." Doc. 45.

{¶9} On May 15, 2020, the Appellees filed a supplemental affidavit ("the Sedor Affidavit") from Mark Sedor ("Sedor") in support of their motion for summary judgment. Doc. 47. Sedor was the Director of Litigation for The Scotts Co., LLC. Doc. 47. In his affidavit, Sedor described how the Appellees came into possession of the documents from NTP that were attached as exhibits to the motion for summary judgment. Doc. 47. On May 22, 2020, NTP filed a motion to strike the Sedor Affidavit, arguing that this supplemental affidavit was filed after the deadline the trial court had set for the reply brief to have been filed. Doc. 50. NTP also requested leave to file a surreply to the Sedor Affidavit. Doc. 50.

{¶10} On October 1, 2021, the trial court issued its judgment entry. Doc. 65. The trial court granted the motion for leave to file the Sedor Affidavit for the limited purpose of authenticating the documents submitted as exhibits with the motion for summary judgment. Doc. 65. The trial court then denied NTP's motion to strike the Bresch Affidavit and the exhibits attached to the motion for summary judgment. Doc. 65. Finally, the trial court found that the statute of limitations barred the misappropriation claims raised by NTP and granted summary judgment in favor of the Appellees.^[1] Doc. 65.

{¶11} NTP filed its notice of appeal on October 29, 2021. Doc. 69. On appeal, NTP raises the following five assignments of error:

First Assignment of Error

The trial court erred in granting leave to submit a new summary judgment affidavit after briefing pursuant to a court-ordered schedule closed because the defendant-appellees failed to show the excusable neglect required by Civ.R. 6.

Second Assignment of Error

The trial court erred in denying the plaintiff-appellant's motion to strike the summary judgment affidavit because the testimony therein was not based on personal knowledge as required by Civ.R. 56 and was inadmissible hearsay.

Third Assignment of Error

The trial court erred in granting summary judgment based on the statute of limitations because the defendant-appellees' motion contained no admissible evidence and the defendant-appellees had the burden of proving that affirmative defense.

Fourth Assignment of Error

In the alternative, the trial court erred in not providing plaintiff-appellant an opportunity to respond to the affidavit defendant-appellees submitted after summary judgment briefing closed.

Fifth Assignment of Error

The trial court erred in granting summary judgment on the statute of limitations on plaintiff-appellant's trade secret claim because plaintiff-appellant submitted unrefuted evidence raising a genuine issue of fact as to 1) whether misappropriation even occurred prior to the statutory period and 2) whether plaintiff-appellant should have known about misappropriation prior to chemical testing.

First Assignment of Error

{¶12} NTP argues that the trial court abused its discretion by granting the Appellees leave to file a supplemental affidavit from Mark Sedor.

Legal Standard

{¶13} "[S]upplemental evidence is a permissible tool to support a motion for summary judgment." Kisielius v Kisielius, 3d Dist. Shelby Nos. 17-09-05, 17-09-11 2009-Ohio-4624, ¶ 21. "Civ.R. 56(E) states that a 'court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.'" (Emphasis added.) Walter v. AlliedSignal, Inc., 131 Ohio App.3d 253, 263, 722 N.E.2d 164, 171 (3d Dist.). "The decision whether to permit the supplemental affidavit to be filed is a matter within the sound discretion of the trial court." Unifirst Corp. v. Jeff Wyler Ford, Inc., 12th Dist. Clermont No. CA92-08-079, 1993 WL 7875, *2 (Jan. 19, 1993). See Union Bank Co. v. Lampert, 3d Dist. Auglaize No. 2-13-32, 2014-Ohio-4427, ¶ 34 ("[I]t is well within a trial court's discretion to order or allow parties to supplement their arguments in favor of or against summary judgment."); Cashlink, L.L.C. v. Mosin, Inc., 10th Dist. Franklin No. 12AP-395, 2012-Ohio-5906, ¶ 9 ("The decision to admit or exclude evidence, including affidavit testimony, is subject to review under an abuse of discretion standard."). See also Conley v. Wapakoneta City School District Board of Education, 3d Dist. Auglaize No. 2-12-18, 2022-Ohio-2915, ¶ 73 (Zimmerman, J., dissenting).

{¶14} Further, a trial court's decision as to whether a supplemental...