Jensen v. AdChoice, Inc.
2014 Ohio 5590
Ohio Ct. App.2014Background
- Theresa Jensen formed AdChoice, Inc. to sell advertising-related services; buyers paid $500,000 including cash, a promissory note, and an Exclusive Consulting Agreement (ECA).
- A Sales Representative Agreement (SRA) existed; Jensen allegedly breached it by competing through a Terem Marketing, LLC arrangement.
- Terem Marketing placed numerous customer orders beginning March 12, 2008, and Jensen allegedly continued placing orders under Terem through 2009.
- Belegrin and Keel allegedly authorized only the first Terem order and denied knowledge of Terem until mid-2008; full Terem activity allegedly disclosed by 2010.
- The promissory note payments stopped in March 2009, prompting Jensen to file suit for nonpayment; appellees counterclaimed for breach of contract provisions, including the SRA.
- The trial court granted summary judgment to appellees on their SRA breach counterclaim and later awarded liquidated damages for breach through March 7, 2009; Jensen appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of non-compete under SRA | Jensen argues no SRA breach. | Appellees contend Jensen violated the non-compete by operating Terem. | Summary judgment for appellees; breach established. |
| Start and duration of breach | Breach began on discovery date or later; limit time. | Breach began when Terem formed or when first orders placed. | Breach began March 12, 2008 and continued to March 7, 2009. |
| Damages calculation for breach | Damages should reflect fewer breach days. | Damages based on ongoing breach since March 12, 2008. | Liquidated damages awarded for 259 business days, $109,545.50, not against weight of evidence. |
| Cross-appeal on damages period | Full period of covenant violation should be awarded. | Only period of actual breach identified by court should be appraised. | Not well-taken; damages limited to court-found breach period. |
Key Cases Cited
- Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127 (9th Dist.1989) (summary judgment standard; Civ.R. 56(C))
- Eastley v. Volkman, 132 Ohio St.3d 328 (2012-Ohio-2179) (manifest-weight review standard in civil cases)
- Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (1984) (weight-of-evidence standard on appeal)
- Thompkins, 78 Ohio St.3d 380 (1997) (credibility and standard for reviewing factual determinations)
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978) (civil-appellate review; general principles of weighing evidence)