DAVID R. GINN, DDS, Appellant and Cross-Appellee, - vs - STONECREEK DENTAL CARE, Appellee and Cross-Appellant.
CASE NOS. CA2018-09-018 CA2018-09-019 CA2018-11-022
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY
8/12/2019
2019-Ohio-3229
HENDRICKSON, P.J.
CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. 12-CVH-459
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
OPINION
HENDRICKSON, P.J.
{¶ 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.
{¶ 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 damаges 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 noncompete provision. Dr. Martin then filed a motion for judgment notwithstanding the verdict
{¶ 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.
{¶ 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 oрerated 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:
{¶ 12} THE TRIAL COURT ERRED IN OVERRULING DR. GINN‘S MOTION TO AWARD PREJUDGMENT INTEREST AGAINST STONECREEK ON THE JURY VERDICT.
{¶ 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)
{¶ 14} Initially, Dr. Ginn concedes that prejudgment interest under
{¶ 15}
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 sеction 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
{¶ 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 ”
{¶ 19} Dr. Ginn also cites an Eighth District Court of Appeals case where prejudgment interest was awarded on a tortious interference with business relationships claim. Chandler & Assoc. v. America‘s Healthcare Alliance, 125 Ohio App.3d 572 (8th Dist.1997). However, the statutory basis upon which the trial court awarded prejudgment interest is not indicated in that decision. The appeals court cited both the (A) and (C) subsections of
R.C. 1343.03(C)
{¶ 20} Next, Dr. Ginn argues that the trial court abused its discretion in declining to award him prejudgment interest pursuant to
{¶ 21}
{¶ 22} The Ohio Supreme Court has held that “[a] party has not ‘failed to make a good faith effort to settle’ under
{¶ 23} The burden of proof is on the party seeking prejudgment interest. Moskovitz v. Mt. Sinai Medical Ctr., 69 Ohio St.3d 638, 659 (1994).
[I]t is incumbent on a party seeking an award to present evidence of a written (or something equally persuasive) offer to settle that was reasonable considering such factors as the type of case, the injuries involved, applicable law, defenses available, and the nature, scope and frequency of efforts to settle. Other factors would include responses -- or lack thereof -- and a demand substantiated by facts and figures. Subjective claims of lack of good faith will generally not be sufficient. These factors, and others where appropriate, should also be considered by a trial court in making a prejudgment interest determination.
Id. This court‘s review of a trial court‘s decision on a motion for prejudgment interest under
{¶ 24} The triаl court found that Stonecreek Dental cooperated in discovery and complied with its discovery motions. Dr. Ginn argues that Stonecreek Dental did not cooperate in discovery because it refused to supply requested financial information concerning all of the various “owners and users” of the Stonecreek Dental Care trade name. However, Dr. Ginn moved the trial court to compel discovery with respect to this specific discovery dispute. After a hearing, the trial court denied Dr. Ginn‘s motion on the basis that it was untimely. Therefore, Stonecreek Dental acted in compliance with the trial court‘s discovery ruling.
{¶ 25} The trial court also found that Stonecreek Dental did not delay the proceedings
{¶ 26} Assignment of Error No. 2:
{¶ 27} THE TRIAL COURT ERRED BY DENYING DR. GINN‘S MOTION TO COMPEL DISCOVERY AS TO STONECREEK TRADE NAME AND ITS OWNERS AND USERS.
{¶ 28} Dr. Ginn argues that the trial court abused its discretion in denying his motion to compel because he was entitled to discovery concerning the financial records of the various owners and entities using the Stonecreek Dental Care trade name as it was relevant to establishing Stonеcreek Dental‘s net worth for purpose of a punitive damage award. Dr. Ginn further argues that the trial court erred in denying his motion on the basis that he could have sought the information earlier in the case because the trial court had not set a formal cut-off date for discovery.
{¶ 29} Trial courts are given broad discretion in the management of discovery. Baker v. Meijer Stores Ltd. Partnership, 12th Dist. Warren No. CA2008-11-136, 2009-Ohio-4681, ¶ 11. As a result, “an appellate court will not reverse a trial court‘s decision to sustain or
{¶ 30} This court finds no abuse of discretion in the trial court‘s decision to deny Dr. Ginn‘s motion to compel. Stonecreek Dental filed its answer to Dr. Ginn‘s complaint in January 2013. The first jury trial occurred some 16 months later. Presumably, all of Dr. Ginn‘s discovery should have been completed before the first trial commenced. Dr. Ginn presented no new claims against Stonecreek Dental in the second jury trial and therefore any information critical tо the presentation of his case should have already been discovered. Dr. Ginn presented no evidence or rationale indicating why he could not have requested this information earlier. Additionally, the fact that the court had not set a formal discovery cut-off date is not unusual given that this motion to compel was filed in February 2018, on a remand following a jury trial. The trial court‘s decision was reasonable because Dr. Ginn had over a year to obtain this information through discovery prior to the first trial and therefore this court concludes that the trial court did not abuse its discretion in denying Dr. Ginn‘s motion to compel. Dr. Ginn‘s second assignment of error is overruled.
{¶ 31} Assignment of Error No. 3:
{¶ 32} THE TRIAL COURT ERRED IN LIMITING EXAMINATION AT TRIAL ON PUNITIVE DAMAGES AND DENYING SUCH INQUIRY AS TO DEFENDANT TRADE NAME AND ITS OWNERS AND USERS.
{¶ 33} Dr. Ginn argues that the trial court abused its discretion in disallowing him to question Dr. Sanders concerning Stonecreek Dental‘s “full financial status” during the trial on punitive damages. Specifically, Dr. Ginn contends that he was prejudiced by the trial court‘s decision to sustain an objection to a question concerning the combinеd net worth of the five Stonecreek Dental offices. Dr. Ginn claims that this decision prejudiced him because the jury
{¶ 34} The admission or exclusion of relevant evidence is a matter within the sound discretion of the trial court. Williams v. Parker Hannifin Corp., 188 Ohio App.3d 715, 725, 2010-Ohio-1719, ¶ 41 (12th Dist.). This court reviews for an abuse of discretion, which indicates that the trial court acted arbitrarily, unreasonably, or unconscionably. State ex rel. Beavercreek Twp. Fiscal Officer v. Graff, 154 Ohio St.3d 166, 2018-Ohio-3749, ¶ 23.
{¶ 35} During the trial on punitive damages, Dr. Ginn elicited brief testimony from Dr. Sanders as to the total revenue of all the “entities that use the name Stonecreek Dental Care.” Stonecreek Dental objected and the trial court overruled the objection. Dr. Sanders then testified that it was “maybe” $14 million in revenue for all five offices. Dr. Ginn continued with questions related to the net worth of all five Stonecreek Dental offices. Stonecreek Dental again objected and thе trial court asked counsel to approach the bench.
{¶ 36} During the bench discussion, the trial court announced it was modifying its earlier ruling by sustaining Stonecreek Dental‘s objection in part. The court then stated that any further questions concerning Stonecreek Dental‘s financial status would be limited to Stonecreek Dental‘s Chillicothe office. The trial court informed Dr. Ginn that he could proffer the evidence he sought to admit. Dr. Ginn did not proffer the testimony. Dr. Sanders then answered questions regarding the net worth of the Stonecreek Dental Chillicothe office.
{¶ 37} This court concludes that regardless of whether the trial court erred in disallowing testimony as to the total net worth of the Stonecreek Dental offices, Dr. Ginn cannot demonstrate prejudice. First, he failed to proffer Dr. Sanders’ testimony on the subject. Thus, this court would be required to speculate as to what Dr. Sanders would have testified to in order to find a changed outcome. Second, even if Dr. Sanders had testified to
{¶ 38} Cross-Assignment of Error No. 1:
{¶ 39} THE TRIAL COURT ERRED IN ISSUING A FINAL JUDGMENT IN A FICTITIOUS NAME WHILE PLAINTIFF WAS ON ACTUAL NOTICE OF THE LEGAL NAME OF DEFENDANT, AND ABUSED ITS DISCRETION IN DECLINING TO CORRECT THE FACIAL DEFECT UNDER RULE 15 AND RULE 60 WHEN REQUESTED, AND/OR DECLINING TO VACATE A VOID JUDGMENT.
{¶ 40} Stonecreek Dental argues that the trial court erred in issuing a judgment entry against “Defendant, Stonecreek Dental Care.” Stonecreek Dental argues that the trial court should have vacated the judgment entry as void because it was entered in favor of a nonentity trade name. Alternatively, Stonecreek Dental argues that the trial court should have either amended the cоmplaint or issued a corrected judgment entry reflecting that the defendant was the limited liability company that operated Stonecreek Dental‘s Chillicothe office.
{¶ 41} In his 2012 complaint, Dr. Ginn named Dr. Martin and “Stonecreek Dental Care” as the two defendants. Dr. Ginn directed service of process for Stonecreek Dental to the Chillicothe address associated with Stonecreek Dental‘s Chillicothe office. Subsequently, “Stonecreek Dental Care Chillicothe – J. Clarke Sanders, D.D.S., LLC.” answered the
{¶ 42} Nonetheless, the issue concerning which defendant Dr. Ginn had sued and whether there was a proper defendant before the trial court was discussed during the litigation. In September 2016, following the first remand of the case and prior to the second scheduled jury trial, the matter arose during a final pretrial conference and Dr. Ginn subsequently filed a “memorandum on the proper party defendant” and a related motion for default judgment.
{¶ 43} In the memorandum, Dr. Ginn explained that he intentionally sued the trade name “Stonecreek Dental Care” because “there was no way to know who the owner of the trade name was.” Dr. Ginn then argued that the Chillicothe limited liability company that had appeared in the action was not the party he intended to sue and described it as a nonparty that had wrongfully appeared in the action. In the related motion for a default judgment, Dr. Ginn argued that the trade name had never answered the complaint and therefore asked the trial court to find the trade name in default and enter judgment in his favor.
{¶ 44} The trial court did not rule on Dr. Ginn‘s motion and implicitly denied it because it instead granted Stonecreek Dental‘s earlier filed motion for summary judgment and dismissed the case. Stonecreek Dental‘s summary judgment motion was premised on the argument that Dr. Ginn had already litigated the entirety of his damages in the case with Dr. Martin.
{¶ 45} Following this court‘s reversal of the summary judgment decision, the issue was once again discussed during a March 2018 motion to compel hearing, which motion was the subject of Dr. Ginn‘s second assignment of error in this appeal. That hearing occurred shortly before the second jury trial in April 2018. In discussing Dr. Ginn‘s argument relative to his ability to demand discovery from the various “owners and users” of the Stonecreek Dental Care trade name, the question arose as to whether Dr. Ginn had ever sought leave to add those parties to the case. In explaining his position, Dr. Ginn relayed that he chose to try his case against the trade name. Under his interpretation of Ohio law, one could sue a trade name and then seek judgment from the owners and users of the trade name. After hearing the arguments, the trial court denied Dr. Ginn‘s motion to compel. Following this denial, Dr. Ginn orally moved to amend the complaint to “include the additional parties that were discussed today.” The trial court overruled the motion on the basis that it was untimely, would cause undue delay, and would be prejudicial to Stonecreek Dental.
{¶ 46} The matter proceeded to trial. There was some testimony which generally explained the corporate structure of the Stonecreek Dental group of dental practices, as well as its common ownership by Dr. Sanders and Dr. Biehle. However, the jury instructions referred to the defendant simply as “Stonecreek Dental Care.” The jury signed a verdict form that listed “Stonecreek Dental Care” as the captiоned defendant. Following the verdict, the trial court issued a final judgment entry granting judgment against “Defendant, Stonecreek Dental Care.”
{¶ 47} Later, Stonecreek Dental moved for relief from judgment, asking the trial court to modify the defendant‘s name on the judgment entry to “Stonecreek Dental Care Chillicothe – J. Clarke Sanders, D.D.S., LLC.” Alternatively, Stonecreek Dental moved the trial court to amend the pleadings to reflect that the defendant was the Chillicothe limited liability company
{¶ 48} In response, Dr. Ginn filed a memorandum once again claiming that he had intentionally sued the trade name. He reiterated the argument that Stonecreek Dental Care Chillicothe – J. Clarke Sanders, D.D.S., LLC. was not his intended defendant, had not been sued, and was essentially a nonparty that had purported to appear in the case.
{¶ 49} Stonecreek Dental responded by arguing that Dr. Ginn‘s “admission” that he had not sued the Chillicothe limited liability company deprived the trial court of personal jurisdiction over it. And because there were no other legal entities in the case other than the trade name, the entire case was void. On appeal, Stonecreek Dental reiterates these arguments.
Void Judgment
{¶ 50} Stonecreek Dental argues that the judgment against the trade name “Stonecreek Dental Care” is void as being rendered against a nonentity. Stonecreek Dental admits that the Revised Code permits an action to be brought against a fictitious business name but argues that Dr. Ginn thereafter had a duty to substitute the legal entity behind the trade name and failed to do so. Therefore, this court will examine whether Ohio law allows a lawsuit to be brought against and litigated to a judgment solely against a registered trade name or whether such a judgment is void.
{¶ 51} The pertinent law is within
{¶ 52} Relevant to this appeal are the (B) and (C) subsections of
{¶ 53} Next,
{¶ 54} Webster‘s Dictionary provides the following definitions for “maintain“:
1 : to keep in а state of repair, efficiency, or validity : preserve from failure or decline * * * 2 a : to sustain against opposition or danger : back up : DEFEND, UPHOLD * * * b : to uphold in argument : contend for * * * 3 : to persevere in : carry on : keep up : CONTINUE * * * 4 : to provide for : bear the expense of : SUPPORT * * * 5 : to affirm in or as if in argument : ASSERT, DECLARE * * * 6 : to assist (a party to legal action) so as to commit maintenance.
Webster‘s Third New International Dictionary 1362 (1993). In general, most of these definitions fall within the concept of “ensuring the survival of.” Thus, an ordinary and plain interpretation of “maintained” as used in
{¶ 55} There was a degree of ambiguity in
{¶ 56} Bright had a medical malpractice claim related to treatment received at the Thomas E. Rardin Family Practice Center (“the Practice Center“). Id. at ¶ 1. Prior to filing suit, Bright‘s attorneys were apparently unable to determine the legal entity that operated the Practice Center. Id. at ¶ 13. Bright then filed suit against the Practice Center, served a receptionist at the Practice Center with a copy of the suit, and later moved for default judgment when the complaint went unanswered. Id. at ¶ 1, 14. Following a damages hearing, the trial court entered judgment аgainst the Practice Center in the amount of $978,840.31. Id. at ¶ 1.
{¶ 57} Bright later learned that the Practice Center was a fictitious name used by “Family Medicine Foundation, Inc.” (“FMF“). Id. at ¶ 2. Bright then moved for a judgment debtor examination of FMF. Id. at ¶ 3. In opposing Bright‘s efforts, FMF argued that the judgment against the Practice Center was void for being rendered against a nonentity fictitious name. The trial court rejected this argument and found FMF could be held liable. Id. The appeals court reversed that decision. Id. at ¶ 4.
{¶ 58} The Ohio Supreme Court accepted a certified conflict review. Id. The certified conflict question presented was “does
{¶ 59} Similarly, Stonecreek Dental clearly had knowledge that the suit was filed against the trade name yet took no formal action to bring this issue to the court until after the judgment had been rendered against it following the second jury trial. While Stonecreek Dental did not ignore the complaint and defended the suit, its implied acquiescence to have the case tried against its trade name also supports the conclusion that the judgment against “Stonecreek Dental Care” is not void. Stonecreek Dental initially noted what is alleged to be its “correct” legal name but then it and Dr. Ginn proceeded to litigate the case as if it were against the trade name rather than forcing the issue by asking the trial court to modify the pleadings or for a ruling to identify the correct legal entity. If Stonecreek Dental had been inclined to ask the trial court to modify the pleadings prior to the trial to identify the correct legal party, it may well have been an abuse of discretion not to аllow such an amendment. But when the matter proceeded to trial and the parties all tried the case as if it were against the trade name, and the jury returned a verdict against the trade name, the argument for amending the pleadings after the fact is less compelling.
{¶ 60} With regard to service of process, this court is aware that the Civil Rules are plainly inconsistent with this interpretation of
{¶ 61} Upon consideration of the language of
{¶ 62} Stonecreek Dental cites the earlier Ohio Supreme Court case of Patterson v. V & M Auto Body, 63 Ohio St.3d 573 (1992), for the argument that the judgment rendered against it is void. In that case, which also involved a fictitious name rather than a registered trade name, the Ohio Supreme Court held that a judgment against a fictitious name is void where the plaintiff was aware of the individual sole proprietor behind the fictitious name. However, while not explicitly overruling Patterson, the Ohio Supreme Court in Family Medicine noted that Patterson did not address
{¶ 63} That the Revised Code permits a lawsuit to be maintained solely against a registered trade name is unexpected and is likely the result of the unique situation presented in this case where a plaintiff has intentionally sued a registered trade namе that is being used by multiple distinct legal entities (the various Stonecreek Dental practices), that is registered to a single legal entity (J. Clarke Sanders DDS Inc.), all of which is commonly owned by two individuals dentists who are not parties to this appeal. Significantly, neither
{¶ 64} Accordingly, this court concludes that the trial court did not err in denying Stonecreek Dental‘s motion to void the judgment entry.
Civ.R. 15(B)
{¶ 65} Stonecreek Dental argues that the trial court abused its discretion in not amending the complaint pursuant to
Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. Failure to amend as provided herein does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
{¶ 66} “[Civ.R.] 15(B) allows for the amendment of pleadings to conform to evidencе presented at trial, and thus, ‘treats issues that were not raised in the pleadings as if they were so raised, as long as they were tried with the express or implied consent of the parties and substantial prejudice will not arise from the result.‘” Richards v. Newberry, 12th Dist. Clermont No. CA2014-08-061, 2015-Ohio-1932, ¶ 22, quoting Aztec Internatl. Foods, Inc. v.
{¶ 67} Stonecreek Dental argues that the trial court should have ordered the pleadings amended because “[t]his case has always been expressly about Stonecreek Dental Care Chillicothe – J. Clarke Sanders, D.D.S., LLC.” In this regard, Stonecreek Dental cites evidence admitted at trial indicating that the legal entity that entered into the employment contract with Dr. Martin was Stonecreek Dental Care Chillicothe – J. Clarke Sanders, D.D.S., LLC.
{¶ 68}
Civ.R. 60(A)
{¶ 69} Next, Stonecreek Dental argues that the trial court abused its discretion in not issuing a corrected judgment entry pursuant to
Clerical mistakes. Clerical mistakes in judgments, orders or
other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
{¶ 70} This court reviews a trial court‘s decision on a
{¶ 71} ”
{¶ 72} The distinction between clerical mistakes, which are subject to correction under
{¶ 73} In Scaglione v. Saridakis, 8th Dist. Cuyahoga No. 91490, 2009-Ohio-4702, the court of appeals affirmed the denial of a
{¶ 74} Eventually, the trial court entered a default judgment against The Car Corner. The matter later proceeded to a jury trial and the plaintiff was awarded $333,000 in damages against the insurance company and The Car Corner. Id.
{¶ 75} Following the judgment, the plaintiff subpoenaed McCutcheon and discovered that he was the sole proprietor behind The Car Corner. Id. at ¶ 6. The plaintiff claimed that he did not know the legal status of The Car Corner until after the trial because The Car Corner business name was not registered. Id. The plaintiff asked the trial court to correct the judgment entry nunc pro tunc by substituting McCutcheon for The Car Corner. Id. at ¶ 2.
{¶ 76} Following a hearing, the trial court denied the
{¶ 77} Here, Dr. Ginn filed suit against the trade name Stonecreek Dental Care and
{¶ 78} Given that Dr. Ginn claims to have intentionally sued the trade name and that neither party ever sought, prior to the verdict, to substitute the Chillicothe limited liability company, the trial court‘s decision to include the trade name in the judgment entry does not appear to be an oversight or a clerical mistake. Instead, it appears that, like Scaglione, the judgment entry accurately reflects how the case was tried and what the jury decided. Moreover, substituting a limited liability company for a trade name would be a substantive change to the judgment entry, which would or could have a considerable legal effect on the outcome of the proceedings. This court finds no abuse of discretion in the trial court‘s decision to deny Stonecreek Dental‘s motion to correct the judgment entry pursuant to
{¶ 79} Cross-Assignment of Error No 2:
{¶ 80} PLAINTIFF FAILED TO ADDUCE EVIDENCE OF DAMAGES FROM THIS DEFENDANT THAT WERE DISTINCT FROM DAMAGES ALLEGEDLY FLOWING FROM THE CONDUCT OF DR. MARTIN.
{¶ 81} Stonecreek Dental argues that Dr. Ginn failed to present the jury with evidence of damages that proximately resulted from Stonecreek Dental‘s tortious conduct that were
{¶ 82} Stonecreek Dental cites no authority for its argument and fails to cite the record. Instead, it “incorporates by reference its prior briefing to the Court on this issue,” but fails to specify the “prior briefing” to which it refers. In its reply brief, Stonecreek Dental clarifies that by “prior briefing” it was referring to 12 pages of argument contained in an appellate brief filed several years ago on a previous appeal in this case.10
{¶ 83} The referenced prior briefing involved Stonecreek Dental‘s argument opposing one of Dr. Ginn‘s assignments of error in that case. Stonecreek Dental had claimed that Dr. Ginn was collaterally estopped from relitigating damages against it after having litigated his case against Dr. Martin. This court rejected that argument, finding the collateral source rule applicable. Ginn, 2017-Ohio-4370 at ¶ 19. Stonecreek Dental did not appeal that decision to the Ohio Supreme Court.
{¶ 84} Effectively, Stonecreek Dental is re-arguing an issue that was raised but rejected in earlier proceedings. Stonecreek Dental did not appeal to the Ohio Supreme Court and therefore that matter is law of the сase. Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). However, even if the matter were not law of the case, Stonecreek Dental has failed to
{¶ 85} Cross-Assignment of Error No. 3:
{¶ 86} THE TRIAL COURT ERRED IN DENYING DEFENDANT‘S MOTION FOR DIRECTED VERDICT REGARDING PLAINTIFF‘S FAILURE TO CORRECTLY CALCULATE ALLEGED LOST PROFITS.
{¶ 87} Stonecreek Dental contends that the trial court should have granted its motion for a directed verdict because Dr. Ginn failed to prove lost profits. Specifically, Stonecreek Dental argues that Dr. Ginn only submitted evidence of lost revenue and did not submit evidence of expenses.
{¶ 88} The standard for granting a directed verdict is set forth in
When granted on the evidence. When a motion for a 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 reаsonable 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.
{¶ 89} In ruling on a motion for a directed verdict, the trial court need not consider either the weight of the evidence or the credibility of the witnesses. Collins v. Admr., Bur. of Workers’ Comp., 12th Dist. Madison No. CA2006-12-054, 2007-Ohio-5634, ¶ 14, citing Choate v. Tranet, Inc., 12th Dist. Warren No. CA2005-09-105, 2006-Ohio-4565, ¶ 49. Further, the trial court must not only construe all evidence in a light most favorable to the nonmoving party, it must also give the nonmoving party the benefit of all “reasonable
{¶ 90} In the first trial, Dr. Martin moved for a directed verdict and presented the trial court with an identical argument, which it denied. Dr. Martin assigned error to that decision and this court affirmed the trial court, holding that Dr. Ginn‘s testimony presented a proper basis to calculate damages. Ginn, 2015-Ohio-4452 at ¶ 18-20. The Ohio Supreme Court declined Dr. Martin‘s request for a discretionary review of that opinion. 145 Ohio St.3d 1422, 2016-Ohio-1173.
{¶ 91} In the second jury trial, Dr. Ginn testified as to the historical revenues of his practice. Dr. Ginn also testified as to the revenue generated by Dr. Martin for the six months he was with Dr. Ginn‘s practice and that he doubled that amount to determine how much revenue he would have had if Dr. Martin had stayed with the practice for a year. Stonecreek Dental introduced Dr. Ginn‘s tax returns and various other exhibits depicting his damages. Finally, Dr. Ginn testified that wages were the most significant portion of his office‘s expenses on a yearly basis and testified as to the wage expenses between 2010 and 2016.
{¶ 92} Dr. Ginn presented substantially the same evidence in the second trial as was presented in the first trial. Construing all the evidence in a light most favorable to Dr. Ginn, this court finds there was sufficient evidence to support a lost profits calculation to a reasonable degree of certainty. Accordingly, this court overrules Stonecreek Dental‘s third cross-assignment of error.
{¶ 93} Judgment affirmed.
S. POWELL and RINGLAND, JJ., concur.