Ginn v. Stonecreek Dental Care, CASE NO. CA2018-09-018 (2022)

2019 Ohio 3229

DAVID R. GINN, DDS, Appellant and Cross-Appellee,
STONECREEK DENTAL CARE, Appellee and Cross-Appellant.

CASE NO. CA2018-09-018


August 12, 2019


Case No. 12-CVH-459

Law Offices of Russell A. Kelm, Russell A. Kelm, Ian M. King, 37 West Broad Street, Suite 860, Columbus, Ohio 43215, for appellant and cross-appellee

Carpenter Lipps & Leland LLP, Michael H. Carpenter, Katheryn M. Lloyd, Jonathan N. Bond, 280 North High Street, Suite 1300, Columbus, Ohio 43215; Wood & Lamping, Jeffrey R. Teeters, 600 Vine Street, Suite 2500, Cincinnati, Ohio 45202, for appellee and cross-appellant


{¶ 1} Plaintiff/Appellant/Cross-Appellee, David R. Ginn, D.D.S., and Defendant/Appellee/Cross-Appellant, Stonecreek Dental Care ("Stonecreek Dental"), appeal various findings and rulings made by the trial court below regarding a jury verdict rendered in favor of Dr. Ginn and against Stonecreek Dental. For the reasons set forth below, we affirm the trial court's rulings.

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{¶ 2} This is the fourth appeal involving a lawsuit that was initially filed in 2012. The dispute arose from the sale of Defendant R. Douglas Martin, D.D.S.' dental practice in Washington Courthouse to Dr. Ginn. One of the terms of the sale and purchase agreement was a noncompete clause that prohibited Dr. Martin from practicing dentistry within 30 miles of Dr. Ginn's office.

{¶ 3} It is undisputed that Dr. Martin eventually entered into an employment contract with the Chillicothe office of Stonecreek Dental, which then began to air radio commercials using Dr. Martin's voice, which were broadcast in the Washington Courthouse area. This resulted in Dr. Ginn filing a complaint against Dr. Martin for breach of contract (noncompete) and against Stonecreek Dental for tortious interference with business relationships (between Dr. Ginn and his clients) and tortious interference with a contract (interfering with the noncompete clause of Dr. Ginn's purchase agreement with Dr. Martin).1

{¶ 4} The matter proceeded to a jury trial in May 2014. After Dr. Ginn presented his case in chief, both Dr. Martin and Stonecreek Dental moved for a directed verdict claiming Dr. Ginn failed to (1) offer sufficient evidence to prove certain elements of his claims, (2) show that damages were proximately caused by the alleged breach of contract and, (3) establish damages to a reasonable degree of certainty. The trial court denied Dr. Martin's motion but granted Stonecreek Dental's motion finding that Dr. Ginn failed to show Stonecreek Dental possessed the requisite intent to interfere. The jury ultimately rendered a verdict in favor of Dr. Ginn in the sum of $125,000 against Dr. Martin for breach of the non-compete provision. Dr. Martin then filed a motion for judgment notwithstanding the verdict

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which was denied by the trial court. Dr. Martin appealed in Ginn I and this court affirmed the trial court's rulings and the verdict as it applied to Dr. Martin.2

{¶ 5} In Ginn II, Dr. Ginn appealed the trial court's decision granting Stonecreek Dental's motion for a directed verdict. In April of 2015, this court upheld the trial court's ruling as to Dr. Ginn's tortious interference with business relationships claim but reversed the lower court's ruling on Dr. Ginn's tortious interference with a contract claim and remanded the matter for further proceedings.3

{¶ 6} On remand, Stonecreek Dental moved for summary judgment claiming the trial court would be relitigating damages already awarded from the previous trial, and the trial court granted summary judgment. As it relates to this present appeal, Dr. Ginn appealed and in June 2017, in Ginn III, this court reversed the trial court's decision granting summary judgment in favor of Stonecreek Dental and remanded the matter for further proceedings.4

{¶ 7} On the second remand, Dr. Ginn moved to compel responses to his discovery demands for the financial records of various business entities and individuals that own or have used the trade name "Stonecreek Dental Care."5 Dr. Ginn claimed he needed this information to establish his punitive damage claim against Stonecreek Dental. In denying the motion, the trial court concluded that Dr. Ginn had the opportunity to discover this information earlier in the case and had not presented good cause for reopening discovery.

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{¶ 8} The matter proceeded to a second jury trial solely on Dr. Ginn's tortious interference with a contract claim against Stonecreek Dental. The jury rendered a verdict in favor of Dr. Ginn and awarded him $1,500,000 in compensatory damages. Subsequently, Dr. Ginn presented evidence related to his claim for punitive damages, which consisted of brief testimony from Dr. J. Clarke Sanders, one of the managers and owners of Stonecreek Dental. Dr. Sanders testified as to the total revenue of all five dental offices that operated under the Stonecreek Dental Care trade name. The jury did not award punitive damages.

{¶ 9} Later, Dr. Ginn moved for an award of prejudgment interest on the jury verdict, which the trial court denied. The trial court then entered final judgment in favor of Dr. Ginn and against "Defendant, Stonecreek Dental Care." After the entry of the verdict, Stonecreek Dental moved the trial court to correct the judgment entry to reflect that the defendant's legal name was "Stonecreek Dental Care Chillicothe - J. Clarke Sanders, D.D.S., LLC," the limited liability company that operated the Stonecreek Dental office in Chillicothe. This was also the entity that had entered into the employment contract with Dr. Martin. Stonecreek Dental argued that "Stonecreek Dental Care" was merely a trade name and any judgment against the trade name was void. Dr. Ginn opposed this motion arguing that he had intentionally sued the trade name for strategic purposes and that he had not sued, nor intended to sue, the Chillicothe limited liability company. The trial court denied Stonecreek Dental's motion to correct the judgment entry.

{¶ 10} Dr. Ginn appeals, raising three assignments of error and Stonecreek Dental also appeals raising three cross-assignments of error.

{¶ 11} Assignment of Error No. 1:


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{¶ 13} Dr. Ginn argues that the trial court erred in failing to award him prejudgment interest on the jury verdict because his claim against Stonecreek Dental arose out of a contract and therefore he was statutorily entitled to prejudgment interest pursuant to R.C. 1343.03(A). Dr. Ginn further contends that he was entitled to prejudgment interest based on Stonecreek Dental's failure to engage in good faith settlement efforts, pursuant to R.C. 1343.03(C).

R.C. 1343.03(A)

{¶ 14} Initially, Dr. Ginn concedes that prejudgment interest under R.C. 1343.03(A) is ordinarily limited to interest accruing on breach of contract claims. However, he argues that his claim against Stonecreek Dental for tortious interference with a contract, "arose out of" his contractual agreement with Dr. Martin and therefore falls within the ambit of R.C. 1343.03(A).

{¶ 15} R.C. 1343.03(A) provides:

In cases other than those provided for in sections 1343.01 and 1343.02 of the Revised Code, when money becomes due and payable upon any bond, bill, note, or other instrument of writing, upon any book account, upon any settlement between parties, upon all verbal contracts entered into, and upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of tortious conduct or a contract or other transaction, the creditor is entitled to interest at the rate per annum determined pursuant to section 5703.47 of the Revised Code, unless a written contract provides a different rate of interest in relation to the money that becomes due and payable, in which case the creditor is entitled to interest at the rate provided in that contract.

(Emphasis added).

{¶ 16} The statute does not use the terms "prejudgment" or "postjudgment." Instead, it provides for interest at the statutory rate beginning when "money becomes due and

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payable" on written instruments, accounts, settlements, verbal agreements, as well as on judicial decrees or judgments for the payment of money arising out of tort or contract. Effectively, the statute incentivizes one to keep financial promises or otherwise interest will be added to the past-due amount from the date of nonpayment. The statute further encourages payment of money judgments resulting from tort or contract claims because, again, failure to do so will result in added interest. In this regard, this court and others have held that R.C. 1343.03(A) only provides for postjudgment interest on tort claims. Hance v. Allstate Ins. Co., 12th Dist. Clermont No. CA2008-10-094, 2009-Ohio-2809, ¶ 7, fn 2; Shelly Materials, Inc. v. Great Lakes Crushing, Ltd., 11th Dist. Portage No. 2013-P-0016, 2013-Ohio-5654, ¶ 59.

{¶ 17} There was no written instrument, account, settlement, or verbal agreement entered between Dr. Ginn and Stonecreek Dental and thus no money could become "due and payable" with respect to any of those items. Dr. Ginn did obtain a money judgment against Stonecreek Dental "arising out of tortious conduct." However, this money judgment only became due and payable after the jury found Stonecreek Dental liable and the entry of its verdict. Therefore, pursuant to Hance, Dr. Ginn could only be entitled to postjudgment interest on the money judgment.

{¶ 18} Dr. Ginn argues that "R.C. 1343.03(A) provides that a trial court has the mandatory obligation to award prejudgment interest starting from the date that the claim begins to accrue, i.e., the date that the defendant acted against the plaintiff causing injury, until the entry of the...

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