source: Caselaw Access Project

author: Baldwin, J.

license: Public Domain

text:
    INVENTIV HEALTH COMMUNICATIONS, INC., Plaintiff-Appellant/Cross-Appellee v. Jennifer RODDEN, Defendant-Appellee/Cross-Appellant
    No. 17 CAE 09 0066
    Court of Appeals of Ohio, Fifth District, Delaware County.
    DATE OF JUDGMENT: March 12, 2018
    ROBERT BOWES, Derek E. Diaz, Hahn Loeser & Parks LLP, 200 Public Square, Suite 2800, Cleveland, Ohio 44114, ELISE K. YARNELL, Hahn Loeser & Parks LLP, 65 East State St. Suite 1400, Columbus, Ohio 43215, for Plaintiff-Appellant/Cross-Appellee
    NICK A. NYKULAK, AMILY A. IMBROGNO, Ross, Brittain & Schonberg, 6480 Rockside Woods Blvd. South, Suite 350, Cleveland, Ohio 44131, for Defendant-Appellee/Cross-Appellant
    JUDGES: Hon. John W. Wise, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
   Baldwin, J.

{¶ 1} Plaintiff-appellant inVentiv Health Communications, Inc. appeals from the August 18, 2017 Judgment Entry of the Delaware County Court of Common Pleas granting the Motion to Dismiss filed by defendant-appellee Jennifer Rodden. Defendant-appellee Jennifer Rodden has filed a cross-appeal.

STATEMENT OF THE FACTS AND CASE

{¶ 2} Appellee Jennifer Rodden, a resident of North Carolina, began working in April of 2010 as an administrative assistant for Addison Whitney, which is located in North Carolina. Addison Whitney is a wholly-owned subsidiary of appellant inVentiv Health Communications which is located in Ohio and has its principal place of business in Ohio. According to appellant, the two companies are affiliates.

{¶ 3} On or about April 10, 2010 , appellee signed an "Acknowledgement and Agreement" that was attached to appellant's "Code of Ethics and Business Conduct." Such form states, in relevant part, as follows:

I have read and I understand the foregoing inVentiv Communications, Inc. Code of Ethics and Business Conduct dated May 28, 2009 (the "Code") and by executing this Agreement, I hereby acknowledge my agreement to comply with those obligations and responsibilities set forth in the Code and to be bound by the Code as a condition of my continued status as a[n]...employee of ...inVentiv Communications Inc. or any of its affiliates companies (collectively, the "Company") [.]

{¶ 4} The inVentiv Agreement specifically prohibits company representatives, including all employees of appellant and its affiliates, from disclosing confidential information, engaging in any fraud, theft or similar conduct, or engaging in any Restricted Activity in the Restricted Area for two years following termination of employment with appellant or its affiliates. The inVentiv Agreement defines "Restricted Activity" as follows:

[S]oliciting to provide or providing advertising, public relations, branding, health outcomes, medical education, and/or any other marketing or similar services offered by the Company to any person or entity which (a) was a client of the Company at any time during the last twelve months in which the Company Representative was employed with the Company, or (b) was an Active Client Prospect of the Company (i.e. a person or entity with whom there had been contact by someone at the Company within the 90-day period immediately preceding such termination of employment) at the time of the Company Representative's termination of employment with the Company. For purposes hereof, the term "Restricted Area" means the United State of America.

{¶ 5} The inVentiv Agreement also contains a forum selection clause providing that it would be governed and construed in accordance with laws of the state of Ohio. The forum selection clause further states as follows: "I hereby consent to the exclusive jurisdiction and venue of any state or federal court in Ohio to consider any claims related to the interpretation or enforcement of any provision of the Code or this Agreement or any other related claims." Additionally, the agreement further states, in relevant part, that "[t]his instrument and the terms of the Code constitute the entire agreement between the parties with respect to the subject matter hereof."

{¶ 6} Appellee, on April, 12, 2010, also signed an "Employee Confidentiality and Non-Compete Agreement" with Addison Whitney which included its subsidiaries or affiliates, including appellant. Addison Whitney's representative signed the same on April 14, 2010. Pursuant to the terms of the agreement, appellee agreed that she would not directly or indirect compete with Addison Whitney for a period of one year after termination of her employment. She further agreed that during her employment with Addison Whitney and for one year following her termination, she would not:

Either on [her] behalf of any other person or entity, directly or indirectly (a) hire, solicit or encourage or induce any employee, director, consultant, contractor or subcontractor to leave the employ of Addison Whitney, or (b) solicit, induce, encourage or entice away or divert any person or entity which is then a customer of Addison Whitney and which was a customer of Addison Whitney during the term of Employee's employment.

{¶ 7} While the Addison Whitney Agreement contains a North Carolina choice of law clause, it does not contain a forum selection clause. The Addison Whitney Agreement further provides that it represented the entire agreement between appellee and Addison Whitney "with respect to the subject matter hereof, superseding all previous oral or written communications, representations, understanding or agreement relating to this subject."

{¶ 8} In January of 2017, appellee, who had been a Senior Project Manager for Addison Whitney since 2014, resigned from Addison Whitney and, along with five other Addison Whitney employees, contemplated forming a competing company.

{¶ 9} On January 30, 2017, Addison Whitney filed a complaint in North Carolina against appellee and her former co-workers. On April 14, 2017, appellant filed a complaint in Ohio against appellee, alleging that she had breached her contractual obligations to appellant and had misappropriated appellant's confidential and proprietary information. Appellant sought injunctive relief. Appellant, on the same date, filed a Motion for Temporary Restraining Order that was granted on the same day.

{¶ 10} Appellee, on April 26, 2017, filed a Motion to Dismiss pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief could be granted and under the doctrine of forum non conveniens. Appellant filed a memorandum in opposition to the same on May 10, 2017 and appellee filed a reply on May 17, 2017.

{¶ 11} The trial court, as memorialized in a Judgment Entry filed on August 18, 2017, granted the Motion to Dismiss for failure to state a claim and dismissed appellant's complaint with prejudice. The trial court found that enforcement of the Ohio forum selection clause in appellant's agreement would be unreasonable and unjust.

{¶ 12} Appellant now appeals from the trial court's August 18, 2017 Judgment Entry raising the following assignments of error on appeal:

{¶ 13} I. THE TRIAL COURT ERRED IN HOLDING THAT THE FORUM SELECTION CLAUSE IN THE PARTIES' CONTRACT WAS UNENFORCEABLE.

{¶ 14} II. THE TRIAL COURT ERRED IN HOLDING THAT THE CHOICE-OF-LAW PROVISION IN THE PARTIES' CONTRACT WAS UNENFORCEABLE.

{¶ 15} III. THE TRIAL COURT ERRED BY DISMISSING INVENTIV'S COMPLAINT WITH PREJUDICE DESPITE HOLDING ONLY THAT THE FORUM SELECTION CLAUSE IN THE PARTIES' CONTRACT WAS UNENFORCEABLE.

{¶ 16} Appellee has filed a cross-appeal raising the following assignments of error:

{¶ 17} I. THE TRIAL COURT ERRED IN HOLDING THAT INVENTIV'S CODE OF ETHICS AND BUSINESS CONDUCT AGREEMENT WAS NOT SUPERSEDED BY ADDISON WHITNEY'S EMPLOYEE CONFIDENTIALITY AND NON-COMPETE AGREEMENT.

{¶ 18} II. THE TRIAL COURT ERRED IN RELEASING INVENTIV'S BOND WITHOUT ALLOWING FOR A HEARING ON DAMAGES CAUSED BY A WRONGFULLY GRANTED TEMPORARY RESTRAINING ORDER.

I, II

{¶ 19} Appellant, in its first assignment of error, argues that the trial court erred in holding that the forum selection clause contained in the parties' agreement was unenforceable and in granting appellee's Motion to Dismiss. In its second assignment of error, appellant maintains that the trial court erred in holding that the choice of law provision in the parties' agreement was unenforceable.

{¶ 20} As an initial matter, we note that while appellee filed a Motion to Dismiss pursuant to Civ.R. 12(B)(6), dismissal for lack of personal jurisdiction comes within the purview of Civ.R. 12(B)(2). A trial court's determination of whether personal jurisdiction over a party exists is a question of law, and appellate courts review questions of law under a de novo standard of review. Information Leasing Corp. v. Jaskot, 151 Ohio App.3d 546, 2003-Ohio-566, 784 N.E.2d 1192 (1st Dist.). Moreover, we shall assume, arguendo, for purposes of our analysis that the trial court did not err in holding that appellant's agreement with appellee was not superseded by the agreement that appellee signed with Addison Whitney, as alleged by appellee.

{¶ 21} Generally, a court must undertake a two-step process in determining whether a state court has personal jurisdiction over a non-resident defendant. Fraley v. Estate of Oeding, 138 Ohio St.3d 250, 2014-Ohio-452, 6 N.E.3d 9, ¶ 12. The court must first consider whether Ohio's long-arm statute, R.C. 2307.382, or the civil rules confer jurisdiction. Id. If they do, the court must then consider whether asserting jurisdiction over the non-resident defendant would deprive the defendant of the right to due process under the law, as guaranteed by the Fourteenth Amendment to the U.S. Constitution. Id. To satisfy due process, the defendant must maintain "certain minimum contacts with the state so that the suit does not offend traditional notions of fair play and substantial justice." Clark v. Connor, 82 Ohio St.3d 309, 314, 695 N.E.2d 751 (1998).

{¶ 22} However, a person or entity may consent to personal jurisdiction, thereby waiving his her, or its due process rights. Kennecorp Mrge. Brokers, Inc., v. Country Club Convalescent Hosp., Inc., 66 Ohio St.3d 173, 175-176, 610 N.E.2d 987 (1993). One way litigants may consent to personal jurisdiction of a particular court system is through a valid forum selection clause. See Id.

{¶ 23} In Ohio, it is well settled law that "[a]bsent evidence of fraud or overreaching, a forum selection clause contained in a commercial contract between business entities is valid and enforceable, unless it can be clearly shown that enforcement of the clause would be unreasonable and unjust." Kennecorp Mrge. Brokers, Inc., syllabus. In the case sub judice, while appellant is a business entity, appellee, a former employee, is not. As noted by the trial court, Ohio law regarding forum selection clauses in employment contracts is not as settled. See IntraSee v. Ludwig , 9th Dist. Lorain Nos. 10CA009916, 11CA010024, 2012-Ohio-2684, 2012 WL 2236609. In Zilbert v. Proficio Mortgage, Ventures, L.L.C. , 8th Dist. No. 100299, 2014-Ohio-1838, 2014 WL 1776004 at paragraph 32, the court stated that while it was "not advocating that a forum selection clause in an employment contract should never be enforced, or freely invalidated", it found "that the type of contract can make a difference in determining whether to uphold such a clause."

{¶ 24} Under Ohio law, a forum selection clause is presumptively valid, and will be enforced by the forum unless the party challenging the clause shows: (1) that the contract was the result of fraud or overreaching; (2) that enforcement would violate the strong public policy of the forum state; and (3) that enforcement under the particular circumstances of the case would result in litigation in a jurisdiction so unreasonable, difficult and inconvenient that the challenger would for all practical purposes be deprived of his day in court. Barrett v. Picker Int'l, Inc., 68 Ohio App.3d 820, 824, 589 N.E.2d 1372 (8th Dist. 1990).

{¶ 25} Appellee never argued, and the trial court never found, that the contract was the result of fraud. Rather, appellee asserts that the contract was the result of overreaching. "Overreaching is defined as the act or an instance of taking unfair commercial advantage of another." (Internal citations omitted.) Buckeye Check Cashing of Arizona, Inc. v. Lang, S.D.Ohio No. 2:06-CV-792, 2007 WL 641824, *5 (Feb. 23, 2007). "The unequal bargaining power of the parties or lack of ability to negotiate over the clause cannot, in itself, support a finding of overreaching." Id., citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). "However, overreaching may be found if the disparity in bargaining power was used to take unfair advantage." Id., citing United Rentals, Inc. v. Pruett, 296 F.Supp.2d 220, 227 (D.Conn.2003).

{¶ 26} The trial court, in the case sub judice, found that appellant had engaged in overreaching. When appellee was initially hired in April of 2010, she was hired as an administrative assistant and was not, as noted by the trial court, in a position of equal bargaining power with either appellant or Addison Whitney, both commercial entities. The inVentiv Agreement and the Addison Whitney Agreement both prohibited appellee from the same conduct. Under both agreements, appellee was prohibited from using or disclosing either appellant's or Addison Whitney's confidential information and from soliciting or providing specified services to any of appellant's or Addison Whitney's clients. While Addison Whitney has filed suit against appellee in North Carolina, appellant shortly thereafter filed suit against her in Ohio under the forum selection clause for the same alleged conduct said to have breached separate agreements, forcing her to retain counsel and defend herself in two different jurisdictions. We concur with the trial court that appellant thus has been able to take unfair advantage of appellee. This factor weighs in favor of nonenforcement.

{¶ 27} The next issue for determination is whether or not enforcement of the forum selection clause would violate the strong public policy of the forum state. The inVentiv Agreement signed by appellee contains a forum selection clause providing that it would be governed and construed in accordance with laws of the state of Ohio and that Ohio had exclusive jurisdiction. Thus, Ohio is the forum state. "Ohio recognizes the validity of forum selection clauses, and enforcement of the clause would not violate the public policy of Ohio. Thus, this factor does not weigh in favor of nonenforcement." Zilbert at paragraph 24.

{¶ 28} The trial court, with respect to the third part of the test set forth in the Barrett case, found that enforcement of the forum selection clause in the inVentiv Agreement would be unreasonable and unjust. Appellee has the burden of establishing that it would be unreasonable or unjust to enforce the forum selection clause. Zilbert, supra at paragraph 25. A finding of unreasonableness or injustice must be based on more than inconvenience to the party seeking to avoid the forum selection clauses' requirements. Id. Thus, "mere distance, mere expense, or mere hardship to an individual litigant is insufficient to invalidate a forum selection clause". Salehpour v. Just A Buck Licensing, Inc., 12th Dist. Warren No. CA2013-03-028, 2013-Ohio-4436, 2013 WL 5533113, citing IntraSee, Inc. v. Ludwig, 9th Dist. Lorain Nos. 10CA009916 and 11CA010024, 2012-Ohio-2684, 2012 WL 2236609, ¶ 20. Rather, the trial court must find that enforcement of the clause would be manifestly and gravely inconvenient to the party seeking to avoid enforcement such that it will effectively be deprived of a meaningful day in court. Info. Leasing Corp. v. Jaskot, 151 Ohio App.3d 546, 552, 2003-Ohio-566, 784 N.E.2d 1192 (1st Dist.).

{¶ 29} In determining whether the selected forum is sufficiently unreasonable, Ohio courts consider the following factors: (1) which law controls the contractual dispute; (2) the residency of the parties; (3) where the contract was executed; (4) where the witnesses and parties to the litigation are located; and (5) whether the forum clause's designated location is inconvenient to the parties. Original Pizza Pan v. CWC Sports Group, Inc., 194 Ohio App.3d 50, 2011-Ohio-1684, 954 N.E.2d 1220 (8th Dist.), citing Barrett , supra at 825, 589 N.E.2d 1372.

{¶ 30} The inVentiv Agreement contains a choice of law provision that provides that the agreement would be governed and construed in accordance with Ohio law. In determining whether a choice-of-law provision is enforceable, the following standard applies:

The law of the state chosen by the parties to govern their contractual rights and duties will be applied unless either the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or application of the law of the chosen state would be contrary to the fundamental policy of a state having a greater material interest in the issue than the chosen state and such state would be the state of the applicable law in the absence of a choice by the parties. (Emphasis added).

{¶ 31} Schulke Radio Productions, Ltd. v. Midwestern Broadcasting Co. , 6 Ohio St.3d 436, 453 N.E.2d 683, syllabus (1983).

{¶ 32} Appellant, which is incorporated in Ohio and has its principal place of business in Ohio, clearly has a substantial relationship to Ohio. Thus, we must determine whether application of the law of Ohio would be contrary to the fundamental policy of a state having a greater material interest in the issue than the chosen state and such state would be the state of the applicable law in the absence of a choice by the parties.

{¶ 33} We find that North Carolina has a significant interest in the issues in this case. Appellee is a resident of North Carolina, she signed the inVentiv Agreement in North Carolina, and her alleged breach of the agreement occurred in North Carolina.

{¶ 34} Assuming, arguendo, that North Carolina has a "greater material interest" in the issue than Ohio, we must determine whether or not application of Ohio law would be contrary to the fundamental policy of North Carolina. We concur with appellant that we must look to the substantive law of Ohio and the substantive law of North Carolina with respect to the validity of confidentiality and noncompetition agreements. See, for example, Century Business Servs. v. Barton, 197 Ohio App.3d 352, 2011-Ohio-5917, 967 N.E.2d 782 (8th Dist.). "[I]n North Carolina, restrictive covenants between an employer and employee are valid and enforceable if they are (1) in writing; (2) made part of a contract of employment; (3) based on valuable consideration; (4) reasonable both as to time and territory; and (5) not against public policy." United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 649-50, 370 S.E.2d 375, 380 (1988). Under Ohio law, restrictive covenants not to compete are reasonable if the restriction or restraint imposed is (1) no greater than that necessary for the protection of the employer, (2) does not place an undue hardship on the employee, and (3) is not injurious to the public. Raimonde v. Van Vlerah , 42 Ohio St.2d 21, 325 N.E.2d 544, paragraphs one and two of the syllabus (1975). We find that application of the substantive law of Ohio would not violate the fundamental public policy of North Carolina and that the choice of law provision should not be disregarded.

{¶ 35} With respect to the other factors, we note that while appellee resides in North Carolina, appellant is incorporated in Ohio and has its principal place of business there. The contract was executed by appellee in North Carolina and many of the witnesses are located there. The five other defendants in the North Carolina case, who would be relevant witnesses in the case sub judice, all reside in North Carolina. The final factor set forth in Barrett requires this Court to determine whether or not Ohio is inconvenient to the parties. We agree with the trial court that this factor weighs heavily in favor of appellee under the unique facts of this case. In the case sub judice, appellee, who was at the time an administrative assistant, signed an agreement with appellant and also one with Addison Whitney. Both prohibited appellee from disclosing either's confidential information and prohibited appellee from soliciting clients of either. As stated by the trial court in finding that enforcement of appellant's forum selection clause would be inconvenient to the parties:

Rodden [appellee] had no way to know whether she would be forced to defend an alleged breach in Ohio or North Carolina or whether Ohio or North Carolina law would apply. By simultaneously suing Rodden in both Ohio and North Carolina for the same alleged conduct, Rodden has been forced to retain separate counsel and conduct separate discovery in each jurisdiction. Additionally, all of Rodden's alleged acts occurred in North Carolina, and most if not all of the potential witnesses reside in North Carolina. My concerns are compounded by the fact that Rodden-hired initially as an at-will administrative assistant-held little bargaining power over the inVentiv Agreement's forum-selection clause.

{¶ 36} Based on the foregoing, we find that the trial court did not err in holding the forum selection and choice of law clauses to be unenforceable.

{¶ 37} Appellant's first and second assignments of error are, therefore, overruled.

III

{¶ 38} Appellant, in its third assignment of error, contends that the trial court erred in dismissing its complaint with prejudice.

{¶ 39} The trial court, in its August 18, 2017 Judgment Entry, found that the forum selection clause was unenforceable and that, therefore, there was no personal jurisdiction over appellee. The trial court dismissed the complaint with prejudice.

{¶ 40} Civ.R. 41(B)(4) clearly states that a dismissal for lack of jurisdiction is a "failure otherwise than on the merits." "A successful motion [to dismiss for lack of personal jurisdiction] will normally result in an order dismissing the action, but should not prejudice the plaintiff's action on the merits ....". Jurko v. Jobs Europe Agency , 43 Ohio App.2d 79, 88, 334 N.E.2d 478 (8th Dist. 1975).

{¶ 41} We find that the trial court erred in dismissing the complaint with prejudice.

{¶ 42} Appellant's third assignment of error is, therefore, sustained.

CROSS-APPEAL

I

{¶ 43} Appellee, in her first assignment of error in her cross-appeal, argues that the trial court erred in holding that appellant's Code of Ethics and Business Conduct Agreement was not superseded by Addison Whitney's Employee Confidentiality and Non-Compete Agreement.

{¶ 44} Based on our disposition of appellant's first and second assignments of error, appellee's first assignment of error is moot.

II

{¶ 45} Appellee, in her second assignment of error, argues that the trial court erred in releasing appellant's bond without allowing a hearing on damages caused by a wrongfully granted temporary restraining order.

{¶ 46} On April 14, 2017, appellant filed a Motion for Temporary Restraining Order and Preliminary Injunction. On the same date, the trial court issued a Temporary Restraining Order pending oral argument on the preliminary injunction. The trial court ordered that appellant post a bond in the amount of $20,000.00. The bond was posted on April 17, 2017. The hearing on the preliminary injunction was postponed until after the trial court ruled on appellee's Motion to Dismiss. Because the trial court, pursuant to a Judgment Entry filed on August 18, 2017, granted the Motion to Dismiss, the hearing was never held. The trial court, in its August 18, 2017 Judgment Entry, vacated the April 14, 2017 Judgment Entry and stated that appellant could withdraw its $20,000.00 bond.

{¶ 47} In the case sub judice, there is no indication in the record that the bond has been released or that appellee has requested a hearing to recover damages on the bond placed with the court. We concur with appellant that, therefore, such issue is not ripe. It is well established that an appellate court will not rule on questions not considered by a trial court. Ochsmann v. Great Am. Ins. Co., Franklin App. No. 02AP-1265, 2003-Ohio-4679, 2003 WL 22053954 at paragraph 21, citing Mills-Jennings, Inc. v. Dept. of Liquor Control , 70 Ohio St.2d 95, 99, 435 N.E.2d 407 (1982). Thus, we decline to address this argument for the first time on appeal.

{¶ 48} Appellee's second assignment of error is, therefore, overruled.

{¶ 49} Accordingly, the judgment of the Delaware County Court of Common Pleas is affirmed in part and reversed in part. This matter is remanded to the trial court for the limited purpose of entering a dismissal without prejudice.

John Wise, P.J. and Delaney, J. concur.

      The date that appellee signed the Acknowledgement and Agreement is unclear. It appears that she signed it on either April 10, 2010 or April 12, 2010. The trial court found that she had signed the agreement on April 12, 2010.


text:
    Wendall ADAMS, Plaintiff-Appellant v. Dawn ADAMS, Defendant-Appellee
    No. 17 CAF 08 0061
    Court of Appeals of Ohio, Fifth District, Delaware County.
    DATE OF JUDGMENT: March 12, 2018
    DENNIS HORVATH, ERIC M. BROWN, Wolinetz & Horvath, LLC, 250 Civic Center Drive, Suite 220, Columbus, Ohio 43215, For Plaintiff-Appellant
    CHAD A. HEALD, Heald Law, 125 North Sandusky Street, Delaware, Ohio 43015, For Defendant-Appellee
    JUDGES: Hon. John W. Wise, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
   Baldwin, J.

{¶ 1} Wendell Adams, appellant, has appealed the trial court's decision to enforce a provision within a separation agreement made a part of a final divorce decree. The appellee is Dawn Adams.

STATEMENT OF FACTS AND THE CASE

{¶ 2} The appellant and appellee began this case with a Petition for Dissolution of Marriage filed on May 20, 2014 with an attached separation agreement. On August 1, 2014, appellant filed a motion to convert the action for dissolution into a divorce action and that motion was granted. The appellant filed a complaint for divorce on August 6, 2014 and appellee filed an answer and counterclaim on September 10, 2014.

{¶ 3} On January 9, 2015, appellant filed a Motion to Set Aside the Separation Agreement and the trial court denied that motion on February 9, 2015. The parties executed and filed an Agreed Judgment Entry-Decree of Divorce on March 13, 2015 that incorporated the original separation agreement.

{¶ 4} On April 30, 2015 appellee filed a motion to cite appellant in contempt for failure to comply with Section 24, Paragraph 3 of the Separation Agreement which obligated appellant to make monthly payments of $1,866.91 to the parties' adult children's bank accounts. Appellant moved to dismiss the motion on August 5, 2015 and appellee opposed that motion on August 26, 2015. The motion to dismiss was denied on January 26, 2016 and a hearing was scheduled for April 15, 2016.

{¶ 5} The Magistrate conducted the hearing and found that the Separation Agreement did require the appellant to make monthly payments of $1,866.91 to the parties' adult children's bank accounts. Appellant conceded at this hearing that he did not make the payments. In a decision dated May 16, 2017, the Magistrate held appellant in contempt and sentenced him to 30 days in jail. To avoid the jail term, appellant could purge the contempt by paying $3000.00 in attorney fees, court costs, and a monthly payment of $950.00 toward past due payments owed to the parties' sons. The magistrate also awarded appellee judgment against appellant in the amount of $25,203.28, plus 4% interest from the date of the decision.

{¶ 6} Appellant filed objections to the magistrate's decision on May 30, 2017 arguing that: (1) the magistrate erred in finding Plaintiff in contempt for failure to make payment of $1,866.91 each month to his two adult sons; (2) the magistrate did not have jurisdiction over this matter because the children were emancipated; (3) the magistrate did not have the authority to provide support of or aid the adult children; (4) the Defendant was not a real party in interest; and (5) Ohio Revised Code Section 3105.10(B) is not applicable to this action. The objections were no more than single sentences as set out above with no argument or citation to the record in support. Appellee filed her response on June 2, 2017 and the transcript of the hearing was filed on June 28, 2017.

{¶ 7} The trial court considered and overruled the objections on July 31, 2017 and appellant filed a timely appeal. Appellant submits three assignments of error:

{¶ 8} I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT EXERCISED JURISDICTION TO ENFORCE "SECTION TWENTY-FOUR" OF THE PARTIES' SEPARATION AGREEMENT .

{¶ 9} II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN CONCLUDING THAT APPELLEE HAD STANDING TO PROSECUTE HER CONTEMPT MOTION AS A REAL PARTY IN INTEREST.

{¶ 10} III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN CONCLUDING THAT CASTLE IS APPLICABLE TO THIS CASE.

{¶ 11} Appellant's third assignment of error must be overruled for failure to comply with Civ.R. 53(D)(3)(b)(iv) which states:

Waiver of right to assign adoption by court as error on appeal. Except for a claim of plain error, a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).

{¶ 12} The magistrate incorporated Castle v. Castle into the Findings of Fact and Conclusions of law at paragraph 20. Appellant's Objections are broad and non-specific and come perilously close to failing to fulfill the Civ.R. 53 requirement that the objections be specific and state grounds with particularity. We find sufficient grounds to consider appellant's first and second assignments of error. However, appellant failed to object to the magistrate's application of the decision in Castle , so we find that appellant's third assignment of error has been waived. For that reason, we overrule the third assignment of error without further consideration and consider the remaining two assignments.

STANDARD OF REVIEW

{¶ 13} The appellant contends that the first and second assignments of error, asserting the trial court acted without jurisdiction and that the appellee did not have standing, should be reviewed under an abuse of discretion standard. We have previously held that both assignments of error should be reviewed de novo and we find no reason to modify those decisions. (Determining whether a trial court has subject matter jurisdiction is reviewed de novo. Wells Fargo Bank, N.A. v. Elliot , 5th Dist. Delaware No. 13 CAE 03 0012, 2013-Ohio-3690, 2013 WL 4678366, as cited in Dotts v. Schaefer , 5th Dist. Tuscarawas No. 2014 AP 03 0012, 2015-Ohio-781, 2015 WL 965720, ¶ 9 ; When an appellate court is presented with a standing issue, generally a question of law, it applies a de novo standard of review. See Hicks v. Meadows , 9th Dist. Summit No. 21245, 2003-Ohio-1473, 2003 WL 1524555, citing Cleveland Elec. Illum. Co. v. Pub. Util. Comm. 76 Ohio St.3d 521, 523, 668 N.E.2d 889 (1996), as cited in Shockley v. Hedges , 5th Dist. Fairfield No. 05 CA 49, 2005-Ohio-6948, 2005 WL 3537682, ¶ 8 Therefore, we will review the decisions of the trial court de novo.

{¶ 14} In the first assignment of error, appellant relies heavily on Miller v. Miller , 154 Ohio St. 530, 97 N.E.2d 213 (1951) for its holding that the trial court's jurisdiction to provide support or aid to a child ends after the child reaches the age of majority. The holding in Miller has been superseded by R.C. 3105.10(B)(1) to the extent that "[a] separation agreement providing for the support of children eighteen years of age or older is enforceable by the court of common pleas." See Brady v. Brady , 2nd Dist. Miami No. 15725, 1996 WL 285231, *4 ("In the present case, as was noted, the parties provided for support beyond the age of majority, which they were legally permitted to do."). The appellant and appellee entered into a separation agreement that provided for payment of certain sums by appellant despite the fact that the children were over the age of majority when the separation agreement was executed.

{¶ 15} While generally the trial court will not have jurisdiction to order child support after the children reach the age of majority,

'[a] well-established exception to the rule occurs when the parties have reached a separation agreement which provides for child support beyond the age of majority, and such agreement is incorporated in the divorce decree. [Maphet v. Heiselman , 13 Ohio App.3d 278 ] Id. at 279-280 [469 N.E.2d 92 (1984) ] (citations omitted) (parenthetical material added). In the present case, as was noted, the parties provided for support beyond the age of majority, which they were legally permitted to do.

Brady v. Brady , 2nd Dist. Miami No. 15725, 1996 WL 285231, (May 31, 1996) *4

{¶ 16} We hold that the parents can agree to provide for support of children who are past the age of majority pursuant to the authority cited above and R.C. 3105.10 (B)(10). We now turn to the separation agreement to consider whether it provides for the adult children's support.

{¶ 17} The separation agreement contains the following relevant paragraphs in Section 24:

The parties acknowledge that they have two adult children, to wit: Zachary and Joshua. The parties agree to the following terms regarding their adult children:
1) each will be responsible for one half of the tuition, room and board, books and travel (including vehicle) expenses for a four year undergraduate degree or technical/trade education program for both Zachary and Joshua in an amount equivalent to tuition, room and board, books and travel expenses at the Ohio State University. The parties agree that this obligation shall continue until such time as Zachary and/or Joshua have completed their degree/educational program or six years expires following their commencement of college in the fall of 2013. Further, the parties agree that if either Joshua or Zachary are dis-enrolled from college, the obligation to pay shall cease until such time as they re-enroll in college.
2) The parties agree that the wife's ½ of the tuition payment is satisfied through her continued employment with Ohio State University.
3) The parties agree that each month, husband shall deposit $1866.91 into the checking account for Joshua and Zachary held at Delaware County Bank. Said payment shall be in 2 installments, the first of which is to be paid by the first of the month and the 2nd is to be paid by the 15th of the month. This obligation shall continue every month until September 2019.

{¶ 18} Appellant testified at the hearing on the motion to hold him in contempt that the payments required by paragraph 3 of section 24 were related to tuition only and that when his children were no longer enrolled in an educational program that qualified under paragraph 1 of section 24, he was no longer obligated to make a payment. Appellant has abandoned this argument and now contends "the agreement entered into by the parties was not for child support and was not for college expenses for the adult children. It was simply to put money into a bank account in the name of the two children." (Appellant's brief, page 5) Appellant acknowledges appellee's testimony that the payment required by paragraph 3 of section 24 was for food, clothing, car and healthcare (Appellant's brief, page 5) yet inexplicably contends this payment was not for support.

{¶ 19} The term "child support" must be broadly interpreted to include economic maintenance, education and necessities of life. Loyd v. Loyd, 6th Dist. Lucas No. L-92-156, 1993 WL 195794, (June 11, 1993) *4. Appellee testified that she calculated the amount included in the Separation Agreement by considering the cost of "* * * *food, gas, clothing, car upkeep, healthcare bills, dental* * *" (Transcript, page 45, lines 11-12) and appellant did not dispute appellee's description. Therefore, we conclude the payment is properly characterized as support because it provides for "maintenance" and "the necessities of life."

{¶ 20} We hold that R.C. 3105.10(B)(1) does apply to this case, that the parties agreed to provide support to their adult children, that paragraph 3 of section 24 of the Separation Agreement provides for the support of the adult children, and that, therefore, the trial court had jurisdiction to enforce paragraph 3, section 24 of the separation agreement in a contempt action. Leonard v. Leonard, 12th Dist. Butler No. CA91-08-143, 1992 WL 201099, (Aug. 17, 1992) *3Compare Nokes v. Nokes (1976), 47 Ohio St.2d 1, 351 N.E.2d 174, as cited in Matter of Velleca , 5th Dist. Tuscarawas No. 87-AP-12-0093, 1988 WL 82083, (July 25, 1988) *2 (The court, absent provision in a separation agreement, has no authority to order post majority support. R.C. 3105.10(B) (emphasis added) ).

{¶ 21} The first assignment of error is overruled.

{¶ 22} Appellant contends in his second assignment of error that appellee had no standing to pursue an action to enforce Paragraph 3 of Section 24 of the Separation Agreement pertaining to the payments he was obligated to make to his children's bank account. His argument attempts to distinguish our holding in Dotts v. Schaefer , 5th Dist. Tuscarawas No. 2014 AP 06 0022, 2015-Ohio-782, 2015 WL 965728. He claims the fact that the children in Dotts were minors, that the expenses being described were for college room board, books and tuition and that the funds were not directly owed to the child make that holding inapplicable.

{¶ 23} In Dotts we held that "[t]he child is a third-party beneficiary to the agreement, while the parents are the parties to the agreement and therefore have standing to enforce the agreement." Leonard v. Leonard, 12th Dist. Butler No. CA91-08-143, 1992 WL 201099 (Aug. 17, 1992). Dotts supra at ¶ 24. Appellee, as a party to the contract, may bring an action on the contract. Civ.R. 17(A) ; Grant Thornton v. Windsor House, Inc. 57 Ohio St.3d 158, 161, 566 N.E.2d 1220 (1991), as cited in Leonard v. Leonard, 12th Dist. Butler No. CA91-08-143, 1992 WL 201099, (Aug. 17, 1992) *3.

{¶ 24} Our opinion in Dotts was not contingent upon the description of the benefits to be provided by the agreement, but only upon the status of the parents as parties to the agreement. In both cases, the appellant and appellee were parties to the agreement and the children were third party beneficiaries. While some facts described by appellant are different in the two cases, those differences are irrelevant to the conclusion to be drawn from the relevant facts.

{¶ 25} For the forgoing reasons, we find that the appellee was a party to the separation agreement and the divorce decree and had standing to enforce the terms of the separation agreement. The appellant's second assignment of error is overruled.

{¶ 26} We sua sponte consider the propriety and the legal basis for the award in the amount of $25,203.28, plus 4% in interest to appellee. The magistrate issued this award based upon the testimony of appellee and the accounting provided by appellee in Exhibit A, offered at the hearing on the contempt citation. The amounts listed on that exhibit clearly represent amounts due and payable to the bank accounts of the parties' adult children and not to the appellee. This court has jurisdiction to consider this matter under the plain error doctrine.

* * *Implementation of the plain-error doctrine is to be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. See State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804 [7 O.O.3d 178], paragraph three of the syllabus. The plain-error doctrine permits correction of judicial proceedings when error is clearly apparent on the face of the record and is prejudicial to the appellant. State v. Eiding (1978), 57 Ohio App.2d 111, 385 N.E.2d 1332 [11 O.O.3d 113]. Although the plain-error doctrine is a principle applied almost exclusively in criminal cases, this court has stated that the doctrine may also be applied in civil causes, even if the party seeking invocation of the doctrine failed to object to the jury instruction in question, if the error complained of "would have a material adverse affect on the character and public confidence in judicial proceedings."
Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 209, 436 N.E.2d 1001 [24 O.O.3d 316]. See, also, Yungwirth v. McAvoy (1972), 32 Ohio St.2d 285, 288, 291 N.E.2d 739 [61 O.O.2d 504].

Reichert v. Ingersoll , 18 Ohio St.3d 220, 223, 480 N.E.2d 802, 805 (1985)

{¶ 27} The error we identify is clearly evident on the record and it will have a material adverse affect on the character and public confidence in judicial proceedings and could be prejudicial to the appellant unless corrected. We are particularly concerned that the affected parties, the adult children of appellant and appellee, had no opportunity to object to the award and have no remedy. While the record does support a judgment against appellant in the amount of $25,203.28, plus 4% in interest, it does not support awarding that sum to appellee. Presumably those payments should be directed to the accounts of the adult children as required by the relevant portions of the separation agreement, but we will leave that determination to the trial court on remand. For that reason, we reverse the decision of the Delaware County Court of Common Pleas with regard to the awarding of $25,203.28, plus 4% in interest to appellee and remand the matter to the trial court for further proceeding to insure this amount is awarded according to the requirements of the separation agreement.

{¶ 28} The decision of the Delaware County Court of Common Pleas is affirmed in part and reversed in part and remanded to the trial court for further proceedings consistent with this opinion. Costs assessed to appellant.

John Wise, P.J., and Delaney, J., concur.


text:
    Michael F. KELLY, Plaintiff-Appellant v. STARK COUNTY COMMISSIONERS, et al., Defendant-Appellees
    No. 2017CA00148
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT: March 12, 2018
    CRAIG T. CONLEY, 604 Huntington Plaza, 220 Market Avenue South, Canton, Ohio 44702, For Plaintiff-Appellant.
    SUSAN M. SHEFFIELD, Senior Assistant Attorney General, 20 West Federal Street, 3rd Floor, Youngstown, OHio 44503, For Defendant-Appellee Director Department of Job and Family Services.
    VIVIANNE WHALEN DUFFRIN, Assistant Prosecuting Attorney, 110 Central Plaza South, Suite 510, Canton, Ohio 44702, For Defendant-Appellee Stark County Board of Commissioners.
    JUDGES: Hon. John W. Wise, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, J.
   Baldwin, J.

{¶ 1} Plaintiff-appellant Michael F. Kelly appeals from the July 17, 2017 Order of the Stark County Court of Common Pleas affirming the decision of the Unemployment Compensation Review Commission.

STATEMENT OF THE FACTS AND CASE

{¶ 2} Appellant Michael F. Kelly was employed by the Stark County Probate Court as a Staff Attorney for Judge Dixie Park from March 9, 2015 until July 8, 2016 when his resignation became effective. Appellant applied for unemployment compensation benefits and his application was denied on August 1, 2016. Appellant then appealed from that determination. On August 31, 2016, the Director of the Ohio Department of Job and Family Services issued a redetermination decision disallowing appellant's claim. Appellant, on September 16, 2016, filed an appeal from the redetermination decision.

{¶ 3} A telephonic hearing was held on October 27, 2016. The following testimony was adduced at the hearing before the hearing officer.

{¶ 4} In February or March of 2016, appellant notified Judge Park that he would be having back surgery and needed to be off of work for several months. According to appellant, after being told of the surgery, Judge Park became very hostile to him. Appellant did not tell Judge Park that he was unhappy with her treatment of him or complain to any other county official.

{¶ 5} On April 1, 2016, his last day of work before surgery, appellant was told to finish the project that he was working on and "just get out" and go home. He testified that Judge Park spoke to him in an angry tone of voice. After turning in his project, appellant left and went home. According to appellant, about two hours later, Judge Park texted him about leaving.

{¶ 6} When appellant returned to work on June 27, 2016 after his medical leave, Judge Park was irate with him and told him that she needed to see him in her chambers immediately with the bailiff. When the three were in the Judge's chambers, appellant handed the Judge his resignation letter and two week notice before anything was said. Appellant testified that he felt that he was about to be fired and did not want an involuntary termination on his work record. Appellant was told to go home because he did not have documentation from his physician releasing him to return to work. Appellant returned the next day with documentation and was told to leave. He was paid his normal salary through the end of his two week notice period.

{¶ 7} At the hearing, appellant testified as follows when asked about the work environment under Judge Park:

Mr. Kelly: I had become, it was so stressful, not only for me but I think for a lot of the employees. We just always felt that we had to watch what we said or did, every little thing. Like, we'd have to be walking on eggshells, so to speak, so as not to set the judge off because at times, you know, she was prone to what I would view as irrational anger. And so, we always had to watch every little thing that you were doing and it just got to be too much.

{¶ 8} Transcript at 10.

{¶ 9} Bradford Carlton, who had been employed from August 12, 2012 through approximately May 24, 2013 as a Staff Attorney for Judge Park, testified that he resigned. He testified that he told the Judge that he was terrified of her and could not stand working there any longer because of the stressful work environment. When questioned about the "Open Door Policy" in the Probate Court's personnel manual indicating that employees who felt that they had not been treated fairly or had a complaint should orally express their concerns to Judge Park or the chief bailiff, Carlton testified that "when I read it I actually laughed out loud because I couldn't imagine anyone feeling comfortable going in and expressing to her any concerns they had." Transcript at 16.

{¶ 10} The hearing officer, in a Decision mailed on October 28, 2016, found that appellant had quit his employment without just cause and was not entitled to unemployment compensation benefits. The hearing officer affirmed the Director's redetermination decision issued on August 31, 2016. After appellant timely requested further review by the Review Commission, his request was disallowed.

{¶ 11} Appellant, on December 29, 2016, filed an appeal with the Stark County Court of Common Pleas. The trial court, pursuant to an Order filed on July 17, 2017, denied appellant's appeal and affirmed the decision of the Commission. The trial court found that appellant had quit his employment without just cause because he failed to pursue all available options before quitting.

{¶ 12} Appellant now raises the following assignment of error on appeal:

{¶ 13} THE REVIEWING COURT BELOW ERRED IN DENYING APPELLANT'S ADMINISTRATIVE APPEAL.

I

{¶ 14} Appellant, in his sole assignment of error, argues that the trial court erred in denying his administrative appeal and finding that appellant had quit his employment without just cause and was not entitled to unemployment compensation. We disagree.

{¶ 15} R.C. 4141.282(H) governs the standard of review to be applied by the court of common pleas and subsequent reviewing courts in unemployment compensation cases. The statute states, in relevant part, as follows: "If the court finds that the decision of the commission was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse, vacate, or modify the decision, or remand the matter to the commission. Otherwise, the court shall affirm the decision of the commission."

{¶ 16} Our standard of review is the same. Tzangas, Plakas & Mannos v. Administrator, Ohio Bureau of Employment Services, 73 Ohio St.3d 694, 653 N.E.2d 1207 (1995). That is, the court of appeals must also determine whether the commission's decision was unlawful, unreasonable, or against the manifest weight of the evidence. We are required to focus on the decision of the commission, rather than that of the trial court. Huth v. Director, Ohio Dept. of Job and Family Services , 2014-Ohio-5408, 26 N.E.3d 250.

{¶ 17} Appellate courts are not permitted to make factual findings or to determine the credibility of the witnesses; but the reviewing court does have the duty to determine whether the Commission's decision is supported by the evidence in the record. Tzangas, supra, at 696, 653 N.E.2d 1207. This leaves the board's role as factfinder intact. Id. Where the commission might reasonably decide either way, this Court has no authority to upset the Commission's decision. Bonanno v. Ohio Dept. of Job & Family Services , 5th Dist. Tuscarawas No. 2012 AP 02 0011, 2012-Ohio-5167, 2012 WL 5439043 ; Williams v. Ohio Dept. of Job & Family Servs. , 129 Ohio St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031. "Every reasonable presumption must be in favor of the [decision] and the findings of facts [of the Revision Commission]." Id.

{¶ 18} In order to qualify for unemployment compensation benefits, a claimant must satisfy the criteria set forth in R.C. 4141.29(D)(2)(a). The section provides:

{¶ 19} (D) Notwithstanding division (A) of this section, no individual may serve a waiting period or be paid benefits under the following conditions:

{¶ 20} (2) For the duration of the individual's unemployment if the director finds that:

{¶ 21} (a) The individual quit work without just cause or has been discharged for just cause in connection with the individual's work, * * *.

{¶ 22} Pursuant to R.C. 4141.29(D)(2)(a), a claimant is ineligible for unemployment benefits if the claimant quits a job without "just cause."

{¶ 23} R.C. Chapter 4141 does not define "just cause." The Ohio Supreme Court has defined "just cause" as that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act. Irvine v. Unemp. Bd. Of Review, 19 Ohio St 3d 15, 17, 482 N.E.2d 587 (1985) ; Tzangas, supra at 697, 653 N.E.2d 1207. "The determination of whether just cause exists necessarily depends upon the unique factual considerations of the particular case. Determination of purely factual questions is primarily within the province of the referee and the [Commission]." Irvine, supra at 17, 482 N.E.2d 587.

{¶ 24} In the case sub judice, appellant, upon his return to work from medical leave, tendered his typed letter of resignation to the Judge before she could say anything. In the letter, he indicated that he was quitting to "pursue other opportunities more in line with my career goals." At the hearing before the hearing officer, appellant admitted that he never got the chance to hear why the Judge had called him into her chambers but indicated that he felt that he was going to be fired. He further admitted that he had never been disciplined or received any kind of warning in the past. We concur with the trial court that "the inference that he would be terminated is not supported by the evidence. The Appellants (sic) belief in this regard does not rise to a reasonable inference but is not more than a suspicion." Moreover, there was documentation in the record that Jude Park did not intend to terminate appellant when he returned to work.

{¶ 25} Furthermore, an employee "must notify the employer of the problem and request that it be resolved, and thus give the employer an opportunity to solve the problem before the employee quits the job; those employees who do not provide such notice ordinarily will be deemed to have quit without just cause and, therefore will not be entitled to unemployment benefits." DiGiannantoni v. Wedgewater Animal Hosp., Inc., 109 Ohio App.3d 300, 307, 671 N.E.2d 1378 (10th Dist.1996). As noted by the court in DiGiannantoni at 307-308, 671 N.E.2d 1378.

The Supreme Court, however, did not establish a per se rule in Irvine that, absent such notice, claims for unemployment benefits must be denied. Circumstances exist when an employee should not be required to give an employer notice of a problem and an opportunity to solve it. For instance, an employee who is subjected to physical sexual harassment by her employer and has no one to whom she can report the incident but the harassing employer may not need to give notice of the offensive conduct and wait for the employer to correct the problem before quitting. See, e.g., Doering v. Bd. of Review (A.D.1985), 203 N.J.Super. 241, 496 A.2d 720. But, see, Krawczyszyn v. Ohio Bur. of Emp. Serv. (1989), 54 Ohio App.3d 35, 560 N.E.2d 807 (employee whose supervisor pinched and kissed her against her will on several occasions did not quit with just cause, since she did not pursue her employer's grievance procedures to correct the problem).
Thus, in applying the notice element of Irvine, the critical issue underlying whether an employee has quit with just cause is not whether notice was given, but rather whether an ordinarily intelligent person would have quit without giving notice under the circumstances of the case. See Irvine, supra, 19 Ohio St.3d at 17, 19 OBR at 14-15, 482 N.E.2d at 589-590. As a general rule, an ordinarily intelligent employee will not quit his or her job over a problem with working conditions without first bringing that problem to his or her employer's attention, requesting that it be solved, and thus giving the employer an opportunity to correct it. See Irvine, Wilson [v. Ohio Bureau of Employment Services, 1986 WL 13852], and Harmony [v. Administrator, Ohio Bureau of Employment Services], supra [1990 WL 41580]. Nonetheless, circumstances can be envisioned where the general rule should not be dogmatically applied.

{¶ 26} Appellant did not notify Judge Park of the problem and request that it be resolved before resigning. As noted by the trial court, appellant did not speak with Judge Park about his unhappiness towards her and her treatment of him based on his fear of her and his claim that, if he did so, he would be terminated. However, by his own admission, he had never received any discipline prior to resigning. We find that an ordinarily intelligent person would have not quit without giving notice under the circumstances of this case.

{¶ 27} Based on the foregoing, we find that the Commission's decision was not unlawful, unreasonable, or against the manifest weight of the evidence.

{¶ 28} Appellant's sole assignment of error is, therefore, overruled.

{¶ 29} Accordingly, the judgment of the Stark County Court of Common Pleas is affirmed.

John Wise, P.J. and Earle Wise, J. concur.


text:
    Edwin DAVILA, Plaintiff-Appellant v. Jennifer SIMPSON, Defendant-Appellee
    No. 2017CA00166
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT: March 12, 2018
    ED DAVILA, pro se, 333 Erie Street, South #325, Massillon, Ohio 44648, For Plaintiff-Appellant.
    J. MICHAEL GATIEN, 2371 Chestnut Hill St., N.W., North Canton, Ohio 44720, For Defendant-Appellee.
    JUDGES: Hon. Patricia A. Delaney, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, J.
   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 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 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.

{¶ 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 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 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 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 , 2016-Ohio-8071, 75 N.E.3d 752, ¶ 31-32.

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, 2009 WL 2489333, ¶ 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).

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, 2004 WL 2940747, ¶ 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 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.

{¶ 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:

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 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., 2017-Ohio-5522, 93 N.E.3d 436, ¶ 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, 2016 WL 3250138, ¶ 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." 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 [2013 WL 440699], ¶ 25.

Peters v. Tipton, 7th Dist. Harrison No. 13 HA 10, 2015-Ohio-3307, 2015 WL 4899641, ¶ 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.

{¶ 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-CA-84, 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 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.

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

Delaney, P.J. and Earle Wise, J. concur.


author: DORRIAN, J.

text:
    Folly G. TOMETY, Plaintiff-Appellant, v. COLUMBUS CITY SCHOOLS et al., Defendants-Appellees.
    No. 17AP-697
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 13, 2018
    On brief: Folly G. Tomety, pro se. Argued: Folly G. Tomety.
    On brief: Loren L. Braverman, Columbus, for appellees. Argued: Loren L. Braverman, Columbus.
    DECISION
   DORRIAN, J.

{¶ 1} Plaintiff-appellant, Folly G. Tomety, appeals pro se from a judgment of the Franklin County Court of Common Pleas granting a motion for judgment on the pleadings filed by defendants-appellees Columbus City Schools Board of Education ("CCS"), Cassady Alternative Elementary School ("Cassady"), Victoria Frye, Dianne McLinn, and Paula Baldwin (collectively, "appellees"). Because we conclude the trial court did not err by finding Tomety was an at-will employee as a casual or day-to-day substitute teacher and, therefore, appellees were entitled to judgment as a matter of law on Tomety's claim for wrongful termination, we affirm.

I. Facts and Procedural History

{¶ 2} Tomety filed a pro se complaint in the Franklin County Court of Common Pleas on September 9, 2016. Although the complaint did not explicitly set forth a cause of action, the trial court ultimately concluded Tomety sought to assert a claim for wrongful termination. In the complaint, Tomety asserted he began working for CCS in 2004 and that on September 14 and 15, 2015, he was assigned as a substitute teacher for a special education teacher at Cassady. Tomety claimed that while preparing his lunch on the second day of that assignment, Baldwin, who was the principal at Cassady, asked him to leave the building. Tomety asserted that when he asked why, Baldwin told him that two students alleged they had seen him looking at something inappropriate on his cellular phone. Tomety claimed CCS subsequently conducted a hearing, presided over by McLinn. Tomety claimed no formal decision was issued following the hearing, but his employment was terminated.

{¶ 3} Appellees filed an answer admitting that Tomety was employed by CCS as a substitute teacher, he was assigned to Cassady on September 15, 2015, and he was asked to leave the school building on that date after two students reported he was looking at inappropriate pictures on his cellular phone. Appellees further admitted that Tomety was given a hearing concerning his conduct and that, following the hearing, he was informed that CCS would no longer use him as a substitute teacher. Appellees' answer asserted multiple defenses, including Tomety was an at-will employee whose employment was subject to termination at any time for any reason, with or without notice.

{¶ 4} Appellees subsequently moved for judgment on the pleadings, pursuant to Civ.R. 12(C), asserting the complaint failed to allege any set of facts that would entitle Tomety to relief. Tomety filed a memorandum in opposition that included various exhibits purporting to support his claim that he was improperly terminated. On August 29, 2017, the trial court issued a decision and entry granting appellees' motion for judgment on the pleadings.

II. Assignments of Error

{¶ 5} Tomety appeals and assigns the following two assignments of error for our review:

[I.] The Court of Common Pleas erred in granting s (appellee) Columbus City Schools et al, judgment by stating that I didn't provide proof that I request an independent investigation.
[II.] The Court of The Common Pleas erred in granting defendants, Columbus City Schools et al, judgment based on the fact that I had two days assignment at Cassady Elementary Schools so I was considered as Casual substitute so I felt in the category of "casual" or day-to-day substitute.

(Sic passim.)

III. Discussion

{¶ 6} Pursuant to Civ.R. 12(C), a party may move for judgment on the pleadings after the pleadings have closed but within such time as not to delay trial. A motion for judgment on the pleadings tests the allegations contained in the complaint and presents questions of law. Franks v. Ohio Dept. of Rehab. & Corr. , 195 Ohio App.3d 114, 2011-Ohio-2048, 958 N.E.2d 1253, ¶ 53 (10th Dist.). In reviewing the motion, the court must construe all material allegations in the complaint, and any reasonable inferences drawn from those allegations, as true and in favor of the non-moving party. Id. The court may grant a motion for judgment on the pleadings only if no disputes of material fact exist and the pleadings demonstrate the moving party is entitled to judgment as a matter of law. Curtis v. Ohio Adult Parole Auth. , 10th Dist. No. 04AP-1214, 2006-Ohio-15, 2006 WL 23248, ¶ 24. We review de novo a decision granting a motion for judgment on the pleadings. Franks at ¶ 5.

{¶ 7} The trial court granted appellees' motion for judgment on the pleadings based on its conclusion that Tomety was a casual or day-to-day substitute teacher and was not entitled to written notice of non-renewal of employment. The trial court further concluded that as a casual or day-to-day substitute teacher, Tomety was an at-will employee subject to termination with or without cause. Taking the facts alleged in the complaint as true, the trial court concluded that CCS's termination of Tomety was permissible under the law and, therefore, appellees were entitled to judgment as a matter of law.

{¶ 8} In his first assignment of error, Tomety asserts the trial court erred by granting CCS's motion for judgment on the pleadings because it concluded he failed to provide proof that he requested an independent investigation. As discussed more fully below, the trial court concluded Tomety was an at-will employee subject to termination with or without cause. Although Tomety asserted in his complaint that he requested that CCS conduct a technical investigation into the students' allegations, this issue formed no part of the trial court's decision in granting the motion for judgment on the pleadings. The question of whether Tomety requested an independent investigation of the students' allegations was not material to determining whether he was an at-will employee and this argument is not well-taken.

{¶ 9} Accordingly, we overrule Tomety's first assignment of error.

{¶ 10} In his second assignment of error, Tomety claims the trial court erred by concluding he was a casual or day-to-day substitute teacher. Tomety asserts in his brief on appeal that he had a long-term substitute license and had previously held long-term substitute assignments.

{¶ 11} Generally, under Ohio law, "absent an employment contract, an employee is an employee-at-will and may be terminated at any time for any lawful reason or for no reason at all." Blackburn v. Am. Dental Ctrs. , 10th Dist. No. 10AP-958, 2011-Ohio-5971, 2011 WL 5825391, ¶ 7. With respect to substitute teachers, R.C. 3319.10 provides that "[t]eachers may be employed as substitute teachers for terms not to exceed one year for assignment as services are needed to take the place of regular teachers absent on account of illness or on leaves of absence or to fill temporarily positions created by emergencies; such assignment to be subject to termination when such services no longer are needed." The statute expressly states that "[t]eachers employed as substitutes on a casual or day-to-day basis shall not be entitled to the notice of nonre-employment prescribed in section 3311.81 or 3319.11 of the Revised Code." R.C. 3319.10. Based on this provision, the Supreme Court of Ohio has concluded there is a distinction between long-term substitute teachers, who are entitled to written notice of non-renewal of employment and casual or day-to-day substitute teachers, who are not entitled to written notice of non-renewal. State ex rel. Dennis v. Bd. of Edn. , 28 Ohio St.3d 263, 266, 503 N.E.2d 748 (1986). See also State ex rel. Menzie v. State Teachers Retirement Bd. of Ohio , 10th Dist. No. 09AP-1194, 2010-Ohio-3485, 2010 WL 2930165, ¶ 19 (" R.C. 3319.10 refers to two types of substitute teachers: (1) long-term substitute teachers, and (2) 'casual or day-to-day' substitute teachers."). In Dennis , the court determined the teacher was a long-term substitute teacher because he was "employed during the 1984-1985 school year for clearly defined periods to replace specific individuals," "[u]nlike substitute teachers employed on a casual basis, his classroom assignments did not vary day by day," and he was not paid on a per diem basis but was compensated according to the regular teachers' pay schedule. Dennis at 266, 503 N.E.2d 748.

{¶ 12} As explained above, in reviewing CCS's motion for judgment on the pleadings, the trial court was required to construe all material allegations in the complaint, and any reasonable inferences drawn from those allegations, as true and in favor of Tomety, as the non-moving party. Judgment on the pleadings may only be granted if no disputes of material fact exist and the pleadings demonstrate that the moving party is entitled to judgment as a matter of law. With respect to his employment status, Tomety's pro se complaint contained only two material factual assertions: (1) he began working for CCS in September 2004, and (2) he was assigned to Cassady for September 14 and 15, 2015, as a substitute teacher for a special education teacher. Tomety did not assert he had an employment contract with CCS. Thus, the only evidence set forth in the complaint pertaining to the Dennis factors was that Tomety had a two-day assignment at Cassady. This suggests Tomety's assignments were variable and, therefore, he was employed as a casual or day-to-day substitute teacher. To the extent Tomety seeks to argue on appeal that he held a long-term substitute license or was previously employed as a long-term substitute teacher in prior years, those claims were not contained in his complaint and are not properly before the court. Under these circumstances, construing the assertions contained in the complaint in Tomety's favor, we cannot conclude the trial court erred by holding that Tomety was a casual or day-to-day substitute teacher. Further, we cannot conclude the trial court erred by holding Tomety was an at-will employee subject to termination for any lawful reason and CCS was entitled to judgment as a matter of law on Tomety's wrongful termination claim. See Menzie at ¶ 20 ("As a 'casual or day-to-day' substitute teacher, Menzie was employed for each day the Toledo City School District needed her services. Her employment terminated when the day's final school bell rang because, at that point, the district no longer needed her services.").

{¶ 13} Accordingly, we overrule Tomety's second assignment of error.

IV. Conclusion

{¶ 14} For the foregoing reasons, we overrule Tomety's two assignments of error and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

LUPER SCHUSTER and HORTON, JJ., concur.