THOMAS J. JAVORSKY, PLAINTIFF-APPELLANT, v. STERLING MEDICAL, DEFENDANT-APPELLEE.
CASE NO. 14 MA 87
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
May 27, 2015
[Cite as Javorsky v. Sterling Med., 2015-Ohio-2113.]
Hon. Gene Donofrio, Hon. Mary DeGenaro, Hon. Carol Ann Robb
CHARACTER OF PROCEEDINGS: Civil Aрpeal from Court of Common Pleas of Mahoning County, Ohio Case No. 14CV113. JUDGMENT: Reversed and Remanded.
For Plaintiff-Appellant Attorney Martin S. Hume, 6 Federal Plaza Central, Suite 905, Youngstown, Ohio 44503-1506
For Defendant-Appellee Attorney Neal Shah, Attorney Deborah S. Adams, 3300 Great American Tower, 301 East Fourth Street, Cincinnati, Ohio 45202
{¶1} Plaintiff-appellant Thomas J. Javorsky appeals the decision of the Mahoning County Common Pleas Court granting defendant-appellee Sterling Medical‘s
{¶2} In September 2007, Javorsky and Sterling Medical entered into an independent contractor agreement for him to provide podiatry services on behalf of Sterling Medical at its veterans’ clinics in St. Clairsville, Ohio, and in Washington and Uniontown, Pennsylvania. The parties renewed the contract through another written contract executed on January 5, 2009. The 2009 contract stated that Jаvorsky would provide podiatry services at the St. Clairsville clinic through February 28, 2009, and the Washington and Uniontown clinics through December 31, 2010.
{¶3} The 2009 contract contained a termination section which stated:
Sterling Medical and Podiatrist agree that this Agreement may not be canceled except upon the provision of ninety (90) days written notice to the other party. Such notice shall be provided by telegram, mailgram оr certified letter, addressed to the other party at the address specified above. The date on which notice is provided shall be the date on which such mailgram, telegram or certified letter is received.
If the Government should cancel or not renew the contract for any reason, however, then this Agreement shall be terminated without damages to either party. Additionally, if Podiatrist is to be considerеd professionally unacceptable by the U.S. Government and/or Sterling Medical, for any reason whatsoever, then this Agreement between Podiatrist and Sterling Medical may be terminated without damages to either party.
{¶4} On January 2, 2011, Javorsky emailed Dianna Martin, Recruiter/Administrator for Sterling Medical, reminding her that their contract expired on December 31, 2010, for the Uniontown and Washington locations. Javorsky‘s email stated, “Just а reminder our contract expired 12-31-10 for Podiatry Services at
{¶5} According to Javorsky, Sterling Medical terminated his services on September 2, 2011. On January 15, 2014, Javorsky sued Sterling Medical for breach of contract. He alleged that Sterling Medical had terminated him without just cause and in violation of express provisions contained in the 2009 contract. He contended that Sterling Medical acted in bad faith and retaliated against him for following Veterans Administration guidelines for dispensing diabetic shoes and his refusal, in the exercise of his independent medical judgment, to prescribe medically unnecessary shoes.
{¶6} Sterling Medical filed a
{¶8} Javorsky‘s sole assignment of error states:
THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT-APPELLEE‘S MOTION TO DISMISS PLAINTIFF-APPELLANT‘S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTTED [sic].
{¶9} On appeal, Javorsky advances two arguments. First, he argues that the parties had what is essentially an implied-in-fact contract. Second, he argues that the 2009 contract‘s provision requiring 90-days written notice for cancellation of the agreement created an ambiguity surrounding the term provision of the agreement, implying that the parties intended that the contract may extend beyond the express termination date of Decеmber 31, 2010. Sterling Medical advances six reasons why this court should affirm the trial court‘s decision. Since two of those reasons overlap with the arguments advanced by Javorsky, we will proceed to address each of the six reasons in order as presented.
Standard of Review
{¶10} In his appellate brief, Javorsky lists three issues presented for review under the statement of his assignment of error. The first concerns whether the trial court used the рroper standard of review. The second and third concern his contention that the parties had an implied-in-fact contract and that the 2009 contract was ambiguous. As Sterling Medical correctly points out, Javorsky never argues in the substantive portion of his appellate brief how the trial court may have applied the improper standard of review. Sterling Medical argues that because of Javorsky‘s failure in this regard, this court should disregard his assignment of error entirely and affirm the trial court‘s decision.
{¶12} Just because Javorsky did not present substantive arguments in support of his issue presented for review concerning the standard of review appliеd by the trial court does not mean that this court can or should disregard the remaining two issues that he does address substantively. Furthermore, in cases such as these it is essentially inconsequential what standard of review the trial court applied since an appellate court‘s standard of review for a
Waiver
{¶13} Sterling Medical next argues that Javorsky failed to assert his implied contract and ambiguous contract theories before the trial court and therefore waived the arguments on appeal.
{¶14} It is well settled that a party who fails to raise an argument before the trial court waives the right to make that argument on appeal. Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, ¶ 34. However, it is equally as well settled that thе waiver doctrine is discretionary. Hill v. Urbana, 79 Ohio St.3d 130, 133, 679 N.E.2d 1109 (1997).
Implied Contract
{¶16} On appeal, Javorsky argues that he had an implied contract with Sterling Medical. In response, Sterling Medical repeatedly emphasizes that the last written contract the parties had, the 2009 contract, expressly provided that it terminated on December 31, 2010.
{¶17} Ohio is a notice-pleading state. York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 144, 573 N.E.2d 1063 (1991).
{¶19} Contrary to the Ohio Supreme Court‘s decision in York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 145 (1991), the trial court here required Javorsky to prove his case at the pleading stage. Even so, it is indisputable that the parties had a written contract as evidenced by a copy of the 2009 contract Javorsky attached to his complaint. Indeed, by its express terms, it did expire on December 31, 2010. However, Javorsky alsо attached to his complaint a copy of an email dated January 2, 2011, in which Javorsky reminded Dianna Martin, Recruiter/Administrator for Sterling Medical, that their contract expired on December 31, 2010, for the Uniontown and Washington locations. Javorsky‘s email stated, “Just a reminder our contract expired 12-31-10 for Podiatry Services at Uniontown and Washington, PA. Let me know if you are interested in extending the contract for those sеrvices. Please advise me if I should continue working at both locations this week.” Martin responded, “I thought all of the providers at Washington and Uniontown were contacted to advise them that, while we are in re-negotiations with the Pittsburgh VAMC for the contract renewal, that the current contract was extended to February 28, 2011. Yes, we do want you to continue at both locations.”
{¶21} Furthermore, Javorsky attached a copy of the notice of termination of the independent subcontractor agreement between the parties. In the notice, dated September 2, 2011, Sterling Medical informs Javorsky that it is terminating their independent subcontractor agreement for podiatry services and specifically references section 8, the termination section, of their 2009 agreement. This comprises an additional alleged fact which supports Javorsky‘s theory that the parties had at the very least an implied contract.
At-Will Relationship
{¶22} Sterling Medical argues that when parties to an employment or professional services contract expressly state a termination date, the contract terminates on that date and any continued performance after that date is continued at-will. Sterling Medical cites to Snedigar v. Miami Univ., 10th Dist. No. 11AP-8, 2011-Ohio-4365, in support of this argument.
{¶23} In Snedigar, plaintiff-appellant David Snedigar was employed by defendant-appellee Miami University on January 2, 2007, with his appointment set to end at the end of the university‘s fiscal year on June 30, 2007. The university reappointed Snedigar on June 27, 2007, for the period of July 1, 2007 to June 30, 2008, and again on June 27, 2008, for the period July 1, 2008 to June 30, 2009.
{¶24} Prior to the expiration of his last appointment, Snedigar became involved in a romantic and “tumultuous” relationship with a coworker. The coworker еnded the relationship but Snedigar persisted after her resulting in her filing a claim for harassment against him and obtaining a protection order. The university initiated disciplinary proceedings but then terminated Snedigar on August 4, 2009.
{¶25} Snedigar sued the university for breach of contract. However, the trial court granted the university summary judgment concluding that Snedigar‘s claims failed as a matter of law because at the expiration of Snedigar‘s aрpointment on June 30, 2009, he became an at-will employee whose employment could be terminated at any time without cause. On appeal, Snedigar argued that his employment agreement had been extended and in support pointed to the following letter he received from human resources:
On June 15, 2009, the Department of Human Resources received a copy of the recommendation frоm your supervisor, Kristin Kieffer, that your employment be terminated based upon the findings of an investigation conducted by the Office of Equity and Equal Opportunity. Per your request, the University will conduct a hearing to determine if Ms. Kieffer‘s recommendations warrant such action.
Although your current contract expired June 30, 2009, you will not receive an annual appointment letter pending the outcome of the hearing. However, you will сontinue in your role as the Media Production Supervisor until further notice.
{¶26} The Tenth District disagreed with Snedigar‘s argument concerning this letter, stating:
While Hauser‘s letter indicates appellant could remain in his current position “until further notice,” there is no indication that appellant‘s term of employment was being extended to the end of the next fiscal year or to any other date certain. Thus, we conclude the written employment agreement expired by its own terms on June 30, 2009, and that at the time of his termination on August 4, 2009, appellant was an at-will employee that could be terminated at any time and for any reason not contrary to law. Consequently, we find no error in the trial court‘s determination that appellee was entitled to judgment as a matter of law on appellant‘s breach of contract claim.
Snedigar v. Miami Univ., 10th Dist. No. 11AP-8, 2011-Ohio-4365, ¶ 13.
{¶27} Sterling Medical‘s reliance on Snedigar is misplaced and ignores the procedural posture of Javorsky‘s case. Snedigar involved a determination of the plaintiff‘s breach of contract claim on summary judgment. In fact, it could be argued that since Snedigar‘s breach of contract claim survived to the summary judgment stage of proceedings the Tenth District‘s decision supports the notion that Javorsky‘s breach of contract claim should have at least survived a
Statute of Frauds
{¶28} Assuming there was аn implied contract renewal, Sterling Medical argues that the contract would be invalid pursuant to Ohio‘s Statute of Frauds since it was not reduced to writing. In response, Javorsky argues that the parties’ agreement was in writing and that even if it was not his part performance of the contract removes it from the Statute of Frauds.
{¶29} Ohio‘s Statute of Frauds provides in relevant part:
No action shall be brought * * * upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged
therewith or some other person thereunto by him or her lawfully authorized.
{¶30} Thus, the statute requires that multi-year employment contracts or contracts for personal services be embodied in writing. Hodges v. Ettinger, 127 Ohio St. 460, 466-467, 189 N.E. 113 (1934); Leseganich v. United Steelworkers of Am., 7th Dist. No. 86 C.A. 128, 1987 WL 16854 at *9 (Sept. 9, 1987). Contrary to Javorsky‘s assertion, the doctrine of pаrt performance does not apply to remove contracts for personal services from the Statute of Frauds. Hodges, supra.
{¶31} Nonetheless, a contract can be comprised of more than one document. Internatl. Bhd. of Elec. Workers, Local Union No. 8 v. Gromnicki, 139 Ohio App.3d 641, 645, 745 N.E.2d 449 (6th Dist. 2000); see also Brown‘s Run Country Club v. Brown, 12th Dist. No. CA95-03-048, 1995 WL 577650 (Oct. 2, 1995) (noting that written contracts often consist of more than one document); Restatement of the Law 2d, Contracts, (1981) 342, Section 132 (for purposes of satisfying the statute of frauds, a memorandum may consist of several writings provided that one writing is signed and the several writings clearly relate to one another).
{¶32} Here, Javorsky presented multiple documents which could be construed as sufficient to comprise one valid written contract. He attached to his complaint the 2009 contract and the parties’ 2011 email which clearly referenced the 2009 contract. Sinсe the proceedings below did not advance beyond the initial pleadings, it would seem premature to say whether these two documents were sufficient to comprise a written contract so as to remove the parties’ agreement from the Statute of Frauds. However, the documents should have been considered enough to survive Sterling Medical‘s
Contract Ambiguity
{¶33} At one point, the parties’ 2009 agreement states that thе term of the agreement “shall commence January 12, 2009 through December 31, 2010 at the Washington, PA VA Outpatient Clinic except as subject to paragraph 8 herein.”
{¶34} Given our resolution of Javorsky‘s first argument under this assignment of error and conclusion that his complaint sufficiently set forth a cause of actiоn for breach of contract, his second argument concerning any alleged ambiguity in the parties’ 2009 agreement has been rendered moot. See
{¶35} In sum, the trial court erred in granting Sterling Medical‘s
{¶36} Accordingly, Javorsky‘s sole assignment of error has merit.
DeGenaro, J., concurs.
Robb, J., concurs.