Ginn v. Stonecreek Dental Care, No. CA2014–06–015. (2022)

30 N.E.3d 1034

David R. GINN, DDS, Plaintiff–Appellant
v.
STONECREEK DENTAL CARE, et al., Defendants–Appellees.

No. CA2014–06–015.

Court of Appeals of Ohio, Twelfth District, Fayette County.

April 27, 2015.


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Russell A. Kelm, Joanne W. Detrick, Columbus, OH, for plaintiff-appellant.

Jeffrey Teeters, Cincinnati, OH, for defendant-appellee, Stonecreek Dental Care.

Mark D. Landes, James M. Young, Columbus, OH, for defendant-appellee, R. Douglas Martin, DDS.

OPINION

ROBERT ALLEN HENDRICKSON, J.

{¶ 1} Plaintiff-appellant, David R. Ginn, DDS, appeals from a decision of the Fayette County Court of Common Pleas granting a directed verdict in favor of defendant-appellee, Stonecreek Dental Care. For the reasons outlined below, we affirm in part and reverse in part the decision of the trial court and remand this cause for further proceedings.

{¶ 2} This appeal stems from the sale of a dental practice owned by R. Douglas Martin, DDS, located in Washington Court House. In 2010, Dr. Ginn was considering expanding his current dental practice, also located in Washington Court House, and Dr. Martin was interested in selling his practice. Following negotiations, Dr. Ginn and Dr. Martin entered into a contract for sale (contract) in which Dr. Ginn purchased “[a]ll right, title and interest in and to the name R. Douglas Martin, DDS, which name Seller warrants and represents to be the only trade name and trademark used by Seller in the course of its business” (goodwill provision). The contract provided that Dr. Martin was prohibited from engaging in business “within thirty (30) miles” of Dr. Ginn's practice for “five (5) years” from October 2010 (noncompete provision). Dr. Ginn and Dr. Martin also entered into a separate employment agreement whereby Dr. Martin was to work for Dr. Ginn one day per week. For various reasons, the relationship between Dr. Ginn and Dr. Martin

30 N.E.3d 1038

deteriorated, and Dr. Martin's employment ended in April 2011.

{¶ 3} Shortly after Dr. Martin stopped working for Dr. Ginn, Dr. Martin began working for Stonecreek Dental one day per week in its Chillicothe office, which is located within 30 miles of Dr. Ginn's dental practice. Dr. Clark Sanders, DDS, an owner of Stonecreek Dental, communicated with Dr. Martin during his hiring process. A business consultant for Stonecreek Dental also communicated with Dr. Martin. In September 2011, Stonecreek Dental produced radio advertisements using Dr. Martin's voice to encourage people to see the dentists at Stonecreek Dental. These radio advertisements were broadcast in areas surrounding Stonecreek Dental, including Washington Court House.

{¶ 4} On November 15, 2012, Dr. Ginn filed a complaint against Dr. Martin and Stonecreek Dental. Relevant to this appeal, Dr. Ginn alleged that Stonecreek Dental tortiously interfered with his business relationships because it “induced and assisted Defendant Martin in his wrongful conduct to cause Plaintiff's patients to cease their business relationship with Plaintiff.” Additionally, Dr. Ginn alleged that Stonecreek Dental knew of the contractual relationship between Dr. Ginn and Dr. Martin, yet tortiously interfered with the contract. Specifically, Dr. Ginn claimed Stonecreek Dental tortiously interfered with the contract by employing Dr. Martin within the geographic area prohibited by the noncompete provision and by using Dr. Martin's voice in radio advertisements, which caused a loss of business goodwill.

{¶ 5} A jury trial began on May 20, 2014. At trial, Dr. Ginn elicited testimony from Dr. Sanders that Dr. Martin had provided Dr. Sanders with a copy of the contract and Dr. Martin assured Dr. Sanders working for Stonecreek Dental would not be in violation of the contract. Furthermore, Dr. Sanders testified that according to Mapquest, Dr. Ginn's office was more than 30 miles away from Stonecreek Dental's office. Dr. Sanders admitted that radio advertisements were produced for Stonecreek Dental using Dr. Martin's name and voice. An exhibit introduced at trial revealed that the advertisements using Dr. Martin's name and voice were broadcast in Washington Court House beginning in September 2011 and ending in January 2013.

{¶ 6} Dr. Ginn testified on his own behalf detailing his lost profits and stating that the only difference in the way he practiced dentistry was that Dr. Martin had left. Dr. Ginn did not specifically identify any of his patients who left to be treated by Stonecreek Dental. Dr. Ginn admitted people have a choice as to which dentist they choose to see and stated there are many reasons people stop seeing a specific dentist. Furthermore, Dr. Ginn opined that he does not keep a record of where patients transfer. However, Dr. Ginn also testified that he had always treated his patients well but that his business began declining around the time Stonecreek Dental's radio advertisements began.

{¶ 7} At the conclusion of Dr. Ginn's case, both Stonecreek Dental and Dr. Martin moved for a directed verdict. Dr. Martin argued that Dr. Ginn failed to show that damages were proximately caused by the alleged breach of contract and further failed to establish damages to a reasonable degree of certainty. The trial court denied Dr. Martin's motion. However, the trial court granted a directed verdict in favor of Stonecreek Dental, finding that Dr. Ginn failed to show Stonecreek Dental possessed the requisite intent to interfere. Dr. Ginn now appeals, asserting one assignment of error for review:

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{¶ 8} THE TRIAL COURT ERRED IN GRANTING DIRECTED VERDICT TO STONECREEK DENTAL ON [DR. GINN'S] TORTIOUS INTERFERENCE CLAIMS.

{¶ 9} On appeal, Dr. Ginn asserts that the trial court erred in granting a directed verdict on both his tortious interference with business relationships claim and his tortious interference with contract claim. Dr. Ginn argues that Stonecreek Dental, through the use of radio advertisements, tortiously interfered with his business relationships by encouraging and causing Dr. Ginn's patients to leave. Furthermore, Dr. Ginn asserts that Stonecreek Dental tortiously interfered with the contract because it knew its act of hiring Dr. Martin was substantially certain to violate the noncompete and goodwill provisions.

Standard of Review

{¶ 10} The standard for granting a directed verdict is set forth in Civ.R. 50(A)(4), which provides:

When a motion for directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

To avoid a directed verdict, it is necessary for the plaintiff to produce some evidence upon every element of the claim. Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981). In turn, we have stated, “When the party opposing a motion for a directed verdict has failed to adduce any evidence on the essential elements of the claim, a directed verdict is appropriate.” Nieman v. Bunnell Hill Development Co, Inc., 12th Dist. Butler No. CA2009–04–109, 2010-Ohio-1519, 2010 WL 1268165, ¶ 25. In ruling on a motion for directed verdict, neither the weight of the evidence nor the credibility of the witnesses need be considered. Downard v. Rumpke of Ohio, Inc., 12th Dist., 2013-Ohio-4760, 3 N.E.3d 1270, ¶ 15. As a directed verdict involves a question of law, our standard in reviewing a grant of a motion for a directed verdict is de novo. White v. Leimbach, 131 Ohio St.3d 21, 2011-Ohio-6238, 959 N.E.2d 1033, ¶ 22. Consequently, we utilize the same standard the trial court should have used, without granting deference to the trial court's determination. Downard at ¶ 16.

Torts

{¶ 11} “The torts of interference with business relationships and contract rights generally occur when a person, without a privilege to do so, induces or otherwise purposely causes a third person not to enter into or continue a business relation with another, or not to perform a contract with another.” A & B–Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 14, 651 N.E.2d 1283 (1995). “The elements essential to recovery for a tortious interference with a business relationship are: (1) a business relationship; (2) the wrongdoer's knowledge thereof; (3) an intentional interference causing a breach or termination of the relationship; and (4) damages resulting therefrom.” Wolf v. McCullough–Hyde Mem. Hosp., 67 Ohio App.3d 349, 355, 586 N.E.2d 1204 (12th Dist.1990).

{¶ 12} In contrast, the elements of tortious interference with contract are “(1) the existence of a contract, (2) the wrongdoer's knowledge of the contract, (3) the wrongdoer's intentional procurement of the contract's breach, (4) the lack of justification, and (5) resulting damages.”

30 N.E.3d 1040

Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 176, 707 N.E.2d 853 ...

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