Sivinski v. Kelley, 2011 Ohio 2145

Sivinski and Kelley formed K&F in 1997; 1997 Agreement split profits with Sivinski as an equity/ salaried partner.
A 1999 Agreement purportedly set Sivinski’s compensation for 2000–2002, but Sivinski claims it never governed him and that the 1997 Agreement remained in effect.
Kelley died in 2006; Lynn Kelley, as executrix, later sued Ferraro and K&F and Sivinski asserted his own claims against the Estate.
During litigation, the Estate introduced the 1999 Agreement and claimed it superseded the 1997 Agreement; Sivinski denied the 1999 Agreement’s existence.
The trial court granted directed verdicts in favor of the Estate on Sivinski’s claims, and the jury awarded the Estate damages on spoliation of evidence and abuse of process claims, plus attorney fees.
On appeal, the Eighth District reversed in part, vacating the jury damages and attorney fees tied to spoliation and abuse of process, and affirmed the directed verdict on Sivinski’s other claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Spoliation elements viability	Sivinski argues spoliation proven; no destruction of the 1999 Agreement occurred.	Estate asserts willful concealment suffices for spoliation.	Spoliation claim insufficient; directed verdict for Sivinski appropriate.
Ulterior motive for abuse of process	Estate’s abuse claim supported by concealment and pursuit of claims.	No ulterior motive; conduct was not for collateral advantage outside proceeding.	Abuse of process claim rejected; directed verdict for Sivinski upheld.
Contractual entitlement under the 1997 vs 1999 Agreement	Evidence supports 1997 Agreement governing compensation; 1999 Agreement not validly binding on Sivinski.	1999 Agreement supersedes and governs compensation.	Court held 1999 Agreement valid and controlling; directed verdict for Estate on related claims sustained.
Collateral and judicial estoppel	Estate should be barred; inconsistent positions in Kelley I.	No applicable estoppel given record and precedents.	Estoppel doctrines not applicable; assignment overruled.
Support for other Sivinski claims	Evidence could support declaratory judgment, breach of contract, unjust enrichment, and fiduciary-duty claims.	Evidence shows the 1999 Agreement supersedes and bars those claims.	Directed verdict affirmed on these claims; appellate ruling consistent with trial court.

Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d 28 (1993-Ohio-229) (spoliation elements; destruction or alteration required)
Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264 (1996-Ohio-189) (ulterior motive in abuse of process; proper use of process)
O'Day v. Webb, 29 Ohio St.2d 215 (1972) (duty to withhold issues from jury when no evidence)