IN THE COMMON PLEAS COURT OF
OTTAWA COUNTY, OHIO
Sharon O. Meek, et. al.,
Plaintiffs,
v.
Dale A. Solze, et al.,
Defendants.
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Case No. 03-CVH-210
Judge Paul C. Moon
DECISION AND ORDER
*****
{¶1}
This cause comes before the Court upon Defendants’ Memorandum in Support of
Motion for Summary Judgment filed April 20, 2005. Plaintiffs’ Response in Opposition to the
Defendants’ Motion for Summary Judgment and Memorandum was filed June 28, 2005.
Defendant’s Reply Memorandum in Support of Motion for Summary Judgment and Objections
to Affidavits of David Meek, Bryan Meek, and Brad Meek, was filed July 13, 2005. Plaintiffs’
Response in Opposition to the Defendant’s Motion for Summary Judgment and Memorandum
was filed July 20, 2005.
{¶2}
Defendants’ Motion for Summary Judgment presents to this Court for
consideration whether any genuine issues of material fact exist. Defendants seek to establish (A)
COMMON PLEAS COURT OF OTTAWA COUNTY
that Plaintiff’s claim for negligent infliction of emotional distress is unsupported as a matter of
law because Mrs. Meek was never in “physical peril;” 1 (B) that Plaintiffs’ claim for breach of
contract is not supported by the facts of this case, and that there was no oral or written contract
prohibiting Defendant from “receiving and retaining the death benefits as established by Dr.
Meek in 1992;” 2 (C) that Plaintiff’s claim that she is entitled to receive the death benefits under
the doctrine of constructive trust must fail because Plaintiff cannot prove all of the elements of
fraud; (D) that Plaintiff’s claim that Defendant engaged in willful or wanton misconduct is
unsupported as a matter of law because “[w]anton misconduct and willful misconduct are not
separate causes of action;” 3 (E) that Plaintiffs’ claim that Defendant fraudulently misrepresented
to decedent, the intent and purpose of the insurance policies, is unsupported by the facts of this
case and applicable case law; and (F) Plaintiffs’ claim that she is entitled to an itemized
accounting of decedent’s bonuses is not supported by the facts of this case because Defendants
complied with the written agreements in effect from 1996 through 2000, and have provided
Plaintiffs “with an accounting regarding compensation to Dr. Meek for services rendered from
the beginning of the employment relationship up through the date of death.” 4
{¶3}
This Court finds no genuine issues of material fact in dispute and holds that
Defendants are entitled to judgment as a matter of law on all claims, except for its claim for an
1
Heiner v. Moretuzzo, (1995), 73 Ohio St. 3d 80, 87; See Kulch v. Structural Fibers (1997), 78 Ohio St. 3d 134,
1997 Ohio 219, 677 N.E.2d 308,1997 Ohio LEXIS 836; Bunger v. Lawson (1998), 82 Ohio St. 2d 463, 82 Ohio St.
3d 463, 696 N.E.2d 1029, 1998 Ohio LEXIS 2190; Dobran v. Franciscan Med. Ctr. (2004), 102 Ohio St. 3d 54,
2004 Ohio 1883, 806 N.E.2d 537, 2004 Ohio LEXIS 874; Masney v. Rhodes, 7th Dist. No. 02 CA 241, 2004 Ohio
4817, 2004 Ohio App. LEXIS 4352; Audia v. Rossi Bros. Funeral Home, Inc., 7th Dist. No. 98 CA 181, 140 Ohio
App. 3d 589, 2000 Ohio 2677, 748 N.E.2d 587, 2000 Ohio App. LEXIS 6273.
2
Defendants’ Memorandum in Support of Motion for Summary Judgment, at 10.
3
Defendants’ Memorandum in Support of Motion for Summary Judgment, at 13.
4
Defendants’ Memorandum in Support of Motion for Summary Judgment, at 14.
2
COMMON PLEAS COURT OF OTTAWA COUNTY
accounting of decedent’s compensation, which is now moot because Defendants have already
provided the requested information to Plaintiffs.
I.
{¶4}
STANDARD OF REVIEW
Under Civ.R. 56(C), summary judgment is appropriate when the moving party
demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is entitled to
judgment as a matter of law, and (3) after construing the evidence most favorably for the party
against whom the motion is made, reasonable minds can reach only a conclusion that is adverse
to the nonmoving party. 5
{¶5}
The moving party bears the initial responsibility of informing the court of the
basis for the motion and identifying those portions of the record that support the requested
judgment. 6 If the moving party discharges this initial burden, the party against whom the motion
is made then bears a reciprocal burden of specificity to oppose the motion. 7 Moreover, it is well
settled that the party seeking summary judgment bears the burden of showing that no genuine
issue of material fact exists for trial. 8
5
Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St. 3d 367, 369-370, 696 N.E. 2d 201, Citing Horton v.
Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 1995 Ohio 286, 653 N.E. 2d 1196, paragraph three of the syllabus;
Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; Van Fossen
v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 117, 522 N.E.2d 489, 505.
6
Vahila v. Hall (1997), 77 Ohio St. 3d 421, 430; see also Dresher v. Burt (1996), 75 Ohio St. 3d 280, 293, 662
N.E.2d 264 (“the moving party cannot discharge its initial burden under Civ.R.56 simply by making a conclusory
assertation that the non-moving party has no evidence to prove its case”).
7
Vahila v. Hall (1997), 77 Ohio St. 3d 421; see also Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112.
8
Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330, 91 L. Ed. 2d 265, 106 S. Ct. 2548; Mitseff v. Wheeler (1988),
38 Ohio St. 3d 112, 115, 526 N.E.2d 798; Dresher v. Burt (1996), 75 Ohio St. 3d 280.
3
COMMON PLEAS COURT OF OTTAWA COUNTY
{¶6}
In reviewing a motion for summary judgment, the court must construe the
evidence and all reasonable inferences drawn therefrom in a light most favorable to the party
opposing the motion. 9
{¶7}
The burden of establishing that no genuine issues of any material fact remain to
be litigated is on the party moving for summary judgment. 10 Once a party moves for summary
judgment and has supported his or her motion by sufficient and acceptable evidence, the party
opposing the motion has a reciprocal burden to respond by affidavit or as provided in Civ.R.
56(C), setting forth specific facts explaining that a genuine issue of material fact exists for trial. 11
In accordance with Civ. R. 56(E), “a nonmovant may not rest on the mere allegations or denials
of his pleading but must set forth specific facts showing there is a genuine issue for trial.” 12 The
nonmoving party must produce evidence on any issue for which that party bears the burden of
production at trial. 13
II.
{¶8}
BACKGROUND
In 1992, Defendant Dale A. Solze, M.D. (“Dr. Solze”), an ophthalmologist and
sole shareholder of Eye Centers of Northwest Ohio entered into a verbal agreement with Charles
R. Meek, O.D. (“Dr. Meek”) to establish an Eye Centers of Northwest Ohio office in Port
9
Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St. 3d 45; Harless v. Willis Day Warehousing (1978), 54 Ohio St. 2d
64; Murphy v. Reynoldsburg (1992), 65 Ohio St. 3d 356, 358-359, 604 N.E.2d 138 (Doubts must be resolved in
favor of the nonmoving party).
10
Turner v. Turner (1993), 67 Ohio St.3d 337, 340; Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115, 120.
11
Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52; Mitseff v. Wheeler (1988), 38 Ohio St.3d
112, 115.
12
Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App. 3d 421, 629 N.E.2d 513.
13
Wing v. Anchor Media, Ltd. (1991), 59 Ohio St. 3d 108, 111, 570 N.E.2d 1095; Celotex Corp. v. Catrett (1986),
477 U.S. 317, 322-323.
4
COMMON PLEAS COURT OF OTTAWA COUNTY
Clinton and to retain Dr. Meek as an employee in this office. Dr. Meek, an optometrist, had
approached Dr. Solze seeking financial assistance because his private practice in Port Clinton
was experiencing difficulties. Dr. Meek’s alcoholism had impacted his practice, affecting his
ability to bring in new clients and to retain existing clients.
{¶9}
Instead of providing financial assistance, Dr. Solze offered to employ Dr. Meek
through Eye Care Centers of Northwest Ohio by establishing a Port Clinton Office, but
conditioned this business arrangement with Dr. Meek on the understanding that: (1) the Port
Clinton office would not be located at the same location as Dr. Meeks’ former practice; (2) Dr.
Meek would discontinue having lunch at the Elk’s club in Port Clinton, where he regularly
consumed alcohol; and (3) both would maintain life insurance policies on each other, in order to
protect their investment in the new business arrangement. The conditions established by Dr.
Solze were based upon the fact that Dr. Meek was a chronic alcoholic, in poor health, and it was
Dr. Solze’s belief that these steps were necessary in order to protect his investment in the Port
Clinton office and the image of Eye Care Centers of Northwest Ohio.
{¶10} Dr. Solze testified that the purpose of the insurance on the life of Dr. Meek was
to protect his own investment in the Port Clinton office, as well as the equipment that he had to
purchased for this new office. Dr. Solze also testified that the insurance on his life was for the
benefit of Dr. Meek and to enable Dr. Meek to re-establish his private practice should Dr. Solze
die. The insurance proceeds would provide Dr. Meek the necessary funds to establish an office
and purchase equipment for the office.
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COMMON PLEAS COURT OF OTTAWA COUNTY
{¶11} Plaintiffs contend, however, that the decedent’s insurance policy was intended to
be paid to decedent’s spouse, Mrs. Sharon O. Meek, regardless of the designation of Dr. Solze as
beneficiary. Plaintiffs assert the testimony of T. Donald Dougherty reflects that the parties
intended to purchase a “Business Continuation Policy,” otherwise known as a “buy-sell
agreement,” by which the insurance was to be paid out to the surviving spouse of the deceased
partner even though the insurance policy was in the name of the surviving “Business Partner.” 14
{¶12} In 1992, the Prudential Insurance Company of America issued a policy of
insurance on the life of Dale A. Solze in the amount of $100,000.00 with Charles R. Meek as
beneficiary, and on December 2, 1992, U.S. Financial Life Insurance Company issued a policy
on the life of Charles Meek in the amount of $100,000.00 with Dale A. Solze as beneficiary.
Both policies were in effect at the time of Dr. Meek’s death on March 31, 2002. However, there
were no written agreements accompanying the insurance policies setting forth the purpose of the
policies and whether it was intended that the spouse of the decedent was to receive the benefits
regardless of the fact that the spouses were not designated as beneficiaries under the policies.
{¶13} Four years later, Dr. Meek requested that he be provided with a bonus in addition
to his annual salary with Eye Centers of Northwest Ohio. On November 19, 1996, Dr. Meek
signed a two-year contract for services with Eye Centers of Northwest Ohio and on November 1,
1998, entered into a second two-year contract for services, both of which provided for additional
compensation. However, after the second contract for services lapsed in 2000, no new written
contract was executed.
14
Plaintiffs’ Response in Opposition to the Defendants’ Motion for Summary Judgment and Memorandum, at 7.
See Deposition of T. Donald Dougherty, at 133 – 135.
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COMMON PLEAS COURT OF OTTAWA COUNTY
{¶14} During the second half of 2001, Dr. Meek’s health began to decline and he was
not working full-time. In early 2002, Dr. Meek was admitted to the hospital. On March 12,
2002, Dr. Solze sent a letter to Dr. Meek terminating his contract to provide services with Eye
Care Centers of Northwest Ohio, effective May 14, 2002. On March 31, 2002, Dr. Meek died
and pursuant to the terms of the U.S. Financial Life Insurance Company policy, the named
beneficiary, Dr. Solze, received death benefits in the amount of $100,000.00.
II. ANALYSIS
{¶15} The issues before this Court are whether any genuine issues of material fact exist
with respect to Plaintiffs’ claim for (A) negligent infliction of emotional distress; (B) breach of
contract; (C) death benefits under the doctrine of constructive trust; (D) willful or wanton
misconduct; (E) fraudulent misrepresentation; and (F) “an itemized accounting regarding the
computation of the bonuses required under the contract.” 15
A.
Plaintiffs’ Claim for Negligent Infliction of Emotional Distress Must Fail as a
Matter of Law
{¶16} Plaintiff claims that the termination letter sent by Dr. Solze on March 12, 2002,
caused “Plaintiff and her decedent, serious emotional distress and anguish.” 16 Defendants assert,
however, that “Plaintiffs’ claim for negligent infliction of emotional distress fails because there
was no physical injury, because Defendants were exercising their legal right to terminate the
15
Complaint, at 6.
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COMMON PLEAS COURT OF OTTAWA COUNTY
employee relationship, and because there is no substantial psychological injury.” 17 Plaintiff
suggests that this Court must make the “threshold determination of what constitutes ‘outrageous’
conduct as a matter of law,” arguing that the “emotional stress suffered must be both severe and
debilitating to recover damages under an infliction of emotional distress claim.” 18
{¶17} The Ohio Supreme Court held in Paugh v. Hanks, 19 and its predecessor, Schultz v.
Barberton Glass Co., 20 that negligent infliction of emotional distress assumes that a bystander or
witness to a sudden, negligently caused event is traumatized by its emotionally distressing
occurrence. Plaintiff and decedent were not traumatized bystanders or witnesses to a sudden,
negligently caused occurrence and have no factual basis to assert a claim for damages from
negligent infliction of serious emotional distress as defined in Paugh. 21 Nor have Plaintiffs
made a claim for intentional infliction of serious emotional distress, which would require proof
of outrageous conduct and severe emotional distress. 22
{¶18} Moreover, “Ohio courts do not recognize a separate tort for negligent infliction of
emotional distress in the employment context.” 23 The Tenth Appellate Court in Antalis v. Ohio
16
Amended Complaint, at 3.
Defendants’ Memorandum in Support of Motion for Summary Judgment, at 5.
18
Plaintiffs’ Response in Opposition to the Defendants’ Motion for Summary Judgment and Memorandum, at 30.
19
Paugh v. Hanks (1983), 6 Ohio St.3d 72, 451 N.E.2d 759.
20
Schultz v. Barberton Glass Co. (1983), 4 Ohio St.3d 131, 447 N.E.2d 109.
21
See Mason v. United States Fidelity and Guaranty Co. (1990), 69 Ohio App.3d 309, 590 N.E.2d 799,
22
See Yeager v. Local 20, International Brotherhood of Teamsters (1983), 6 Ohio St.3d 369, 453 N.E.2d 666;
Tohline v. Central Trust Co. N.A. (1988), 48 Ohio App.3d 280, 284, 549 N.E.2d 1223 (“Liability for negligent
infliction of emotional distress arises where a bystander to an accident suffers serious and foreseeable emotional
injuries.”)
23
Hatlestad v. Consolidated Rail Corp. (1991), 75 Ohio App.3d 184, 191. See Antalis v. Ohio Dept. of Commerce
(1990), 68 Ohio App.3d 650, 589 N.E.2d 429. See, also, Tohline v. Central Trust Co., N.A. (1988), 48 Ohio App.3d
280, 285, 549 N.E.2d 1223, 1229-1230; Vickers v. Wren Industries, Inc., 2nd Dist. No. 20914, 2005 Ohio 3656, 2005
Ohio App. LEXIS 3366; Heck v. Bd. of Trustees, Kenyon College (S.D.Ohio, 1998), 12 F.Supp.2d 728, 747, citing
Hanly v. Riverside Methodist Hosp. (1991), 78 Ohio App.3d 73, 83, 603 N.E.2d 1126; Kinney v. Ohio Dept. of
Admin. Services, 10th Dist. No. 88AP-27 (Addressing plaintiffs’ claim for negligent infliction of emotional distress
17
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COMMON PLEAS COURT OF OTTAWA COUNTY
Dept. of Commerce, 24 held “absent a clear expression of intent from the Ohio Supreme Court, we
decline to expand the application of this tort to include actions arising out of an employment
situation.” 25
{¶19} In Tschantz v. Ferguson, 26 the Eighth Appellate Court held that “[a] plaintiff
could recover for emotional harm negligently inflicted by defendant only by bringing a
“traditional” claim for negligent infliction of emotional distress, which requires plaintiff to show
that he or she was a bystander to an accident, reasonably anticipated the peril thereof, and
suffered serious and foreseeable emotional distress as a result of his or her cognizance or fear of
the peril.” 27 Therefore, as here, where the party alleging the emotional distress “failed to allege
or produce evidence that his emotional distress resulted from his appreciation of an accident’s
peril, the trial court did not err in granting summary judgment to defendant on plaintiff's claim
for negligent infliction of emotional distress.”28
{¶20} In Heiner v. Moretuzzo, 29 the Ohio Supreme Court affirmed this position, holding
that “Ohio does not recognize a claim for negligent infliction of serious emotional distress where
the distress is caused by the plaintiff's fear of a nonexistent physical peril.” And in Kulch v.
arising from employment context, this court held that “*** if the infliction of serious emotional distress is to be
recognized herein, there must be proof of the independent tort of intentional infliction of emotional distress.”
24
Antalis v. Ohio Dept. of Commerce (1990), 68 Ohio App.3d 650, 589 N.E.2d 429.
25
See Oldfather v. Ohio Dept. of Transp. (S.D. Ohio 1986), 653 F. Supp. 1167, 1181 (plaintiff sought recovery for
negligent infliction of emotional distress based upon termination of his employment. The court in Oldfather, in
denying recovery, distinguished plaintiff's claim arising in an employment context from “* * * Ohio cases awarding
recovery for negligent infliction of emotional distress * * * [involving] situations in which bystanders to accidents
sustained emotional injuries due to the shock resulting from observing the accident. * * *.”
26
Tschantz v. Ferguson (1994), 78 Ohio St.3d 134, 163, 677 N.E.2d 308.
27
See Paugh v. Hanks (1983), 6 Ohio St. 3d 72, 451 N.E.2d 759, paragraphs three and four of the syllabus. See
also, Hanly v. Riverside Methodist Hosp. (1991), 78 Ohio App. 3d 73, 83, 603 N.E.2d 1126.
28
Hanly v. Riverside Methodist Hosp. (1991), 78 Ohio App. 3d 73, 83, 603 N.E.2d 1126.
29
Heiner v. Moretuzzo (1995), 73 Ohio St. 3d 80, 87, 1995 Ohio 65, 652 N.E.2d 664, 1995 Ohio LEXIS 1781.
9
COMMON PLEAS COURT OF OTTAWA COUNTY
Structural Fibers, 30 the Ohio Supreme Court emphasized that “recovery for negligent infliction
of severe emotional distress has typically been limited to instances where the plaintiff has either
witnessed or experienced a dangerous accident and/or was subjected to an actual physical peril.”
Consequently, Plaintiffs may not recover for emotional harm negligently inflicted by the
Defendant. Therefore, Defendants are entitled to summary judgment in their favor on Plaintiffs’
claim for negligent infliction of emotional distress.
B.
Defendants’ Receipt and Retention of the Death Benefits is not a Breach of
Contract
{¶21} Plaintiffs claim that the insurance provided for in paragraph 6.07 of the November
1, 1998 contract is to be paid to decedent’s spouse, Ms. Meek, because the employment contract
was “still in full force and effect” at the time of decedent’s death. 31 Defendants’ argue, however,
that Dr. Solze’s “receipt and retention of the death benefits is not a breach of the contract dated
November 1, 1998, or any other agreement between Dr. Solze and Dr. Meek. Rather, it is the
fulfillment of the agreement between Dr. Solze and Dr. Meek from the beginning of their
employment relationship in 1992.” 32
{¶22} Generally, a breach of contract action is pleaded by stating (1) the terms of the
contract, (2) the performance by the plaintiff of his obligations, (3) the breach by the defendant,
(4) damages, and (5) consideration. 33 In the case sub judice, the amended complaint alleged that
30
Kulch v. Structural Fibers (1997), 78 Ohio St. 3d 134, 1997 Ohio 219, 677 N.E.2d 308,1997 Ohio LEXIS 836
Amended Complaint, at 4.
32
Defendants’ Memorandum in Support of Motion for Summary Judgment, at 8.
33
Harper v. Miller (1957), 109 Ohio App. 269, 164 N.E.2d 754; Haefner v. First Natl. Bank (1942), 70 Ohio App.
293, 44 N.E.2d 489. Allen v. Znidarsic Bros., Inc. (Dec. 29, 2000), 2000 Ohio App. LEXIS 6206 at *8, 11th Dist.
31
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COMMON PLEAS COURT OF OTTAWA COUNTY
Defendant breached the employment contract dated November 1, 1998, when Defendant refused
to pay to Ms. Meek the death benefits as required by the contract. A breach occurs upon any
failure to perform a contractual duty. 34 However, Defendant asserts that there was no failure to
perform a contractual duty because “Pursuant to paragraph 1.01 of the 1998 agreement, it was
for a term of two years * * * Thus, by its own terms, it was not in effect after October 31,
2000.” 35
{¶23} Plaintiff argues that the two contracts “* * * are mere recitations of the Verbal
Agreement previously reached between Plaintiff and Defendants in 1991/1992” 36 But the Ohio
Supreme Court in Howard v. Thomas, 37 noted that “When the contract is reduced to writing, the
law presumes that the writing contains the whole agreement.” In general, the meaning of a
contract should be construed from within the four corners of the instrument. 38 And Courts
presume that the intent of the parties is expressed through the language of the contract.
{¶24} The principal purpose of the parol evidence rule is to protect the integrity of
written contracts. 39 By prohibiting evidence of parol agreements, the rule seeks to ensure the
stability, predictability, and enforceability of finalized written instruments. “It reflects and
implements the legal preference, if not the talismanic legal primacy, historically given to
No. 99-L-088, citing Harper v. Miller, (1957), 109 Ohio App. 269, 164 N.E.2d 754 and American Sales, Inc. v.
Boffo (1991), 71 Ohio App.3d 168, 175, 593 N.E.2d 316. Cf. Silberman v. Natl. City Bank (1930), 36 Ohio App.
442, 173 N.E. 16.
34
Kotyk v. Rebovich (1993), 87 Ohio App. 3d 116, 121, 621 N.E.2d 897, citing Restatement of the Law 2d,
Contracts (1978), Section 235(2).
35
Defendants’ Memorandum in Support of Motion for Summary Judgment, at 8.
36
Plaintiffs’ Response in Opposition to the Defendants’ Motion for Summary Judgment and Memorandum, at 19.
37
Howard v. Thomas (1861), 12 Ohio St. 201, 206, 1861 Ohio LEXIS 132, quoting 3 Phil. Ev., notes 1467, note
984.
38
Fifth Third Bank of Western Ohio v. Shepard Grain Co., 2nd Dist. No. 2003 CA 40, 2004 Ohio 1816, 2004 Ohio
App. LEXIS 1605. See Ross v. Ohio Bar Liab. Ins. Co. (1998), 124 Ohio App. 3d 591, 595, 706 N.E.2d 867;
Robinson v. Robinson, 2nd Dist. No. 17562, 1999 Ohio App. LEXIS 5663.
39
Ed Schory & Sons, Inc. v. Soc. Natl. Bank (1996), 75 Ohio St. 3d 433, 440, 662 N.E.2d 1074, 1080.
11
COMMON PLEAS COURT OF OTTAWA COUNTY
writings. It effectuates a presumption that a subsequent written contract is of a higher nature
than earlier statements, negotiations, or oral agreements by deeming those earlier expressions to
be merged into or superseded by the written document.” 40
{¶25} As stated in 43 O. Jur. 3d, 393, Evidence and Witnesses, Section 541: “It is a
general principle that when parties have deliberately put their engagement into writing in such
terms as import a legal obligation without any uncertainty as to the object or extent of such
engagement, it is conclusively presumed that the entire engagement of the parties, and extent and
manner of their undertaking, have been reduced to writing.”
{¶26} Extrinsic evidence may only be considered when the language of the contract is
unclear or ambiguous or when the circumstances surrounding the agreement invest the language
of the contract with a special meaning. 41 The decision as to whether a contract is ambiguous is a
matter of law. 42
{¶27} A court construing a contract attempts to discover and effectuate the intent of the
parties, which is presumed to reside in the language chosen by the parties in the agreement. 43
Common words appearing in a written instrument are to be given their plain and ordinary
meaning unless some other meaning is clearly intended from the face or overall contents of the
instrument. 44
{¶28} Section 7.02 of the 1998 contract states: “This Agreement supersedes any and all
agreements, both oral and written, between the parties with respect to the rendering of services
40
Galmish v. Cicchini (2000), 90 Ohio St. 3d 22, 2000 Ohio 7, 734 N.E.2d 782, 2000 Ohio LEXIS 2286, quoting 11
Williston on Contracts (4 Ed.1999) 541-548, Section 33:1.
41
Shifrin v. Forest City Ent., Inc. (1992), 64 Ohio St.3d 635, 1992 Ohio 28, 597 N.E.2d 499.
42
Ohio Historical Society v. General Maintenance & Engineering Co. (1989), 65 Ohio App.3d 139, 146, 583
N.E.2d 340.
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COMMON PLEAS COURT OF OTTAWA COUNTY
by Doctor for Company, and contains all of the covenants and agreements between the parties
with respect to the rendering of these services in any manner whatsoever.
Each party
acknowledges no representations, inducements, promises, or agreements, written or oral, have
been made by either party, or by anyone acting on behalf of either party, that are not embodied in
this Agreement. Any modification of this Agreement will be effective only if it is in a writing
signed by the party to be changed.” Here, this Court finds that the parties deliberately put their
agreement into writing in such terms as import a legal obligation without an uncertainty as to the
object or extent of the agreement. By the plain language of the contract, it expired prior to Dr.
Meek’s death.
{¶29} The plain language of the contract also provides that “In the event of the death of
Doctor [Meek] or of Dale A. Solze, M.D. the sole shareholder of Company, it is agreed that each
party shall maintain a life insurance policy in the amount of $100,000 upon the life of the other,
which policy amount shall be paid to the spouse or other designated beneficiary as full payment
for all supplies, records, and equipment in regards to the Port Clinton Office.” 45 The insurance
policy upon Dr. Meek’s life designated Defendant as the beneficiary.
{¶30} Plaintiff argues that “To construe Paragraph 6.07 to indicate that Dr. Solze was
the ‘designated beneficiary of Dr. Meek (or vice versa that Dr. Meek was the designated
beneficiary of Dr. Solze)’ as argued by the Defendants in their Motion for Summary Judgment,
would be an absurd interpretation” of this paragraph. 46 As such, Plaintiff suggests that this
43
Griner v. UNUM Life Ins. Co., 10th Dist. No. 00 AP-678, 2001 Ohio App. LEXIS 705.
Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 245-246, 374 N.E.2d 146.
45
See Contract for Services (November 1, 1998), attached to Complaint and to Plaintiffs’ Response in Opposition to
the Defendants’ Motion for Summary Judgment and Memorandum.
46
Plaintiff’s Response in Opposition to the Defendants’ Motion for Summary Judgment and Memorandum, at 21.
44
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COMMON PLEAS COURT OF OTTAWA COUNTY
provision should be interpreted to mean that the decedent’s spouse should be compensated for
the investment that the decedent made in the Port Clinton office. Such a conclusion, however,
contradicts the terms of the contract and the evidence offered to support the rationale for naming
Defendant as beneficiary.
{¶31} In the case sub judice, Plaintiff attempts to introduce evidence demonstrating that
the intent of the parties was that the death benefits would flow only to the decedent’s spouse. As
discussed earlier, where a term is ambiguous, parol evidence is admissible to interpret, but not to
contradict, the express language of the contract. 47 “If such an ambiguity is alleged, it must arise
from the language of the contract itself and, therefore, courts will not admit parol testimony to
construe an ambiguity forced into the contract to strain the apparent meaning of the language.” 48
{¶32} Here, there is nothing ambiguous about the phrase “each party shall maintain a
life insurance policy in the amount of $100,000.00 upon the life of the other, which policy
amount shall be paid to the spouse or other designated beneficiary as full payment for all
supplies, records, and equipment in regards to the Port Clinton Office.” 49
{¶33} Read in context, the phrase clearly intends that the death benefits would go to
decedent’s spouse or designated beneficiary. Although Defendant asserts that the “conduct of
47
Ohio Historical Soc. v. Gen. Maintenance & Eng. Co. (1989), 65 Ohio App.3d 139, 146, 583 N.E.2d 340. See
Sherock v. Ohio Municipal League Joint Self-Insurance Pool, 11th Dist. No. 2003-T-0022, 2004 Ohio 1515, 2004
Ohio App. LEXIS 1357.
48
Fireman’s Fund Ins. Co. v. Mitchell-Peterson, Inc. (1989), 63 Ohio App.3d 319, 328, 578 N.E.2d 851, citing
Cincinnati v. Gas Light & Coke Co. (1895), 53 Ohio St. 278, 286-287, 41 N.E. 239. See Heritage Mut. Ins. Co. v.
Ricart Ford, Inc. (1995), 105 Ohio App.3d 261, 268, 663 N.E.2d 1009 (“finding the contract clear and
unambiguous, we therefore conclude that there can be no introduction of parol evidence”). See Sherock v. Ohio
Municipal League Joint Self-Insurance Pool, 11th Dist. No. 2003-T-0022, 2004 Ohio 1515, 2004 Ohio App. LEXIS
1357.
49
Guman Bros. Farm, 73 Ohio St.3d at 108. (A term is not ambiguous merely because the policy does not define it).
14
COMMON PLEAS COURT OF OTTAWA COUNTY
the parties establishes their intent regarding the life insurance coverage,”50 this Court does not
disagree. Dr. Meek named Defendant as the beneficiary under the life insurance policy in
question, and not his spouse.
{¶34} Since this Court does not find this phrase to be ambiguous, the parol evidence
Plaintiff attempts to introduce is irrelevant and inadmissible. The evidence that the Defendant
seeks to introduce is relevant and admissible because “parol evidence which does not contradict
the terms of the contract but only supplies an admission in it, is admissible.” 51
{¶35} Dr. Solze testified that the basis of the life insurance policy on Dr. Meek’s life
was to protect his investment in the Port Clinton office. 52 Dr. Solze also testified that the
insurance policy on his life was to permit Dr. Meek to purchase the equipment and continue the
practice should he [Dr. Solze] die. 53
{¶36} Regardless of the intent of the parties, Defendant argues that the fact that the
contract had terminated by its terms renders moot Plaintiffs’ claim for breach of contract because
the Defendant was under no legal obligation to pay the death benefits to Ms. Meek.
{¶37} But Plaintiff argues that the contract “remained in effect right up to the time of
Dr. Meek’s death.” In Kelly v. Carthage Wheel Co., 54 the Ohio Supreme Court noted that “It is
generally accepted as an established rule that, where there is a contract of hiring for a year and at
the expiration of that time the employee is continued in the same service of the employer without
any new or different arrangement, a contract for another year, upon the same terms and
50
Defendants’ Memorandum in Support of Motion for Summary Judgment, at 9. See Columbus, H.V. & T. Ry Co.
v. Pennslyvania Co. (6th Cir.1906), 143 F. 757.
51
Caldwell v. United Presbyterian Church of North Kingsville, Ohio (1961), 180 N.E.2d 638, 1961 Ohio Misc.
LEXIS 277, 20 Ohio Op.2d 364.
52
Deposition of Dale A. Solze, M.D., at 47.
15
COMMON PLEAS COURT OF OTTAWA COUNTY
conditions, arises by implication of law.” Similarly in Adams v. Fitzpatrick, 55 the New York
Court of Appeals held that: “Where one enters into the employ of another, under a contract for
one year's service, at a yearly salary, and continues in the employ after the expiration of the year,
the presumption is that the parties have assented to a continuance of the service for another year
at the same salary.”
{¶38} In Henkle v. Educational Research Council, 56 the Ohio Supreme Court concurred,
stating that its decision in Kelly “merely held that because Kelly had been initially hired for one
year, absent any new arrangement at the end of the that year, he was rehired upon identical terms
for a second year,” stressing, “We view that approach as sound.”
{¶39} In Ojalvo v. Board of Trustees, 57 the Tenth Appellate Court noted that “Where a
contract of employment for a definite time is made and the employee’s services are continued
after the expiration of the time, without objection, the inference is that the parties have assented
to another contract for a term of the same length with the same salary and conditions of service,
following the analogy of a similar rule in regard to leases.” 58
{¶40} From the circumstances of this case, it can be concluded that the decedent was a
hold-over employee. 59 This presumption which arises from an employee’s continued service
after the expiration of a contract is, however, “* * * rebuttable by proof that a new contract for
53
Deposition of Dale A. Solze, M.D., at 47.
Kelly v. Carthage Wheel Co. (1900), 62 Ohio St. 598, 612, 57 N.E. 984, 1900 Ohio LEXIS 196.
55
Adams v. Fitzpatrick (1891), 125 N.Y. 124, 26 N.E. 143, 1891 N.Y. LEXIS 1466.
56
Henkle v. Educational Research Council (1976), 45 Ohio St. 2d 249; 344 N.E.2d 118; 1976 Ohio LEXIS 569; 74
Ohio Op. 2d 415.
57
Ojalvo v. Board of Trustees, 10th Dist. No. 88-AP-773, 1989 Ohio App. LEXIS 3548.
58
Ojalvo v. Board of Trustees, 10th Dist. No. 88-AP-773, 1989 Ohio App. LEXIS 3548, quoting 1 Williston,
Contracts, Rev. Ed. Section 90. See Kelly v. Carthage Wheel Co. (1900), 62 Ohio St. 598, 612, 57 N.E. 984, 1900
Ohio LEXIS 196.
59
See Ojalvo v. Board of Trustees, 10th Dist. No. 88-AP-773, 1989 Ohio App. LEXIS 3548.
54
16
COMMON PLEAS COURT OF OTTAWA COUNTY
the continued period has been entered into, or by facts and circumstances showing that the
parties did not intend to continue upon the terms and conditions of the original contract.” 60
Here, there is no evidence that the parties did not intend to continue upon the terms and
conditions of the 1998 contract, and this presumption is supported by Defendant’s termination
letter to decedent which was submitted pursuant to paragraph 6.02, which provides that “either
party may terminate this Agreement at any time by giving sixty (60) days written notice to the
other party.” 61 Dr. Solze’s letter to Dr. Meek, dated March 12, 2002, states “Pursuant to the
provisions of the Contract between the Eye Care Centers of Northwest Ohio, Inc., and yourself,
this letter is to advise you that Eye Centers is exercising its right to terminate your contract for
services upon 60 days notice. Therefore, your contract for services with Eye Care Centers of
Northwest Ohio, Inc. is terminated effective May 14, 2002.”
{¶41} Moreover, as Defendants have asserted, Dr. Solze’s “receipt and retention of the
death benefits * * * is a fulfillment of the agreement between Dr. Solze and Dr. Meek from the
beginning of their employment relationship in 1992.” Clearly, Defendant intended that the terms
of the contract continue despite the expiration of the contract.
{¶42} Here, the parties did not modify the terms of the contract, the services to be
provided by Dr. Meek, the compensation, the obligations of Dr. Meek, the obligations of Eye
Care Centers of Northwest Ohio, or the termination of the agreement (i.e., the 60 day provision)
and the provisions requiring each party to “maintain a life insurance policy * * * upon the life of
the other.” Likewise, there was no testimony from the parties, including the affidavits of David
60
Annotation (1957), 53 A.L.R. 2d 394.
See Contract for Services (November 1, 1998), attached to Complaint and to Plaintiffs’ Response in Opposition to
the Defendants’ Motion for Summary Judgment and Memorandum.
61
17
COMMON PLEAS COURT OF OTTAWA COUNTY
Meek, Bryan Meek, Brad Meek, and the deposition transcripts of Dale A. Solze, Sharon Meek,
Bonnie Solze, T. Donald Dougherty, and Russel Stoner, from which a conclusion could be drawn
that the parties had, by their conduct, modified their agreement. Assertions that Dr. Solze
promised to convey the death benefits to Ms. Meek following decedent’s death is not relevant to
whether the parties modified the contract prior to decedent’s death.
{¶43} Application of the proposition set forth by the Ohio Supreme Court in Kelly and
the similar rule regarding leases, which has been applied by the Tenth Appellate Court in Ojalvo
v. Board of Trustees, suggests that decedent’s contract was continued under the same terms and
conditions for an additional two year term.
Although Ohio Courts have not specifically
addressed whether there is a contract of hiring for two years and at the expiration of that time,
the employee is continued in the same service of the employer without any new or different
arrangement, a contract for another two years, upon the same terms and conditions, arises by
implication of law, this Court finds this to be a distinction without a difference. Based on the
foregoing decedent’s contract was valid for another two years, and upon the same terms and
conditions. 62 Thus, by the terms of the contract, Defendant was under no obligation to pay the
62
Having found that the employment contract continued, it is not necessary to address whether Defendant was
instead, an employee-at-will and whether there was a separate agreement surrounding an at-will agreement based on
oral representations made concerning decedent’s employment and the life insurance policies. Plaintiffs do not claim
that decedent was an employee-at-will. Nor do Plaintiffs offer evidence demonstrating the parties’ intent or the
existence of implied or express contractual provisions which may have altered the terms of the employment
agreement or the life insurance policies. Although Plaintiffs allege that Dr. Solze represented to Ms. Meek that she
would receive the death benefits, none of these representations occurred prior to decedent’s death. As such, this
Court will not consider whether Defendant was an employee-at-will.
As well, this Court will not consider whether the doctrine of promissory estoppel which places an
additional limit on an employer’s right to discharge where representations or promises have been made to the
employee. Plaintiff does not argue promissory estoppel. In Mers v. Dispatch Printing Co. (185), 19 Ohio St.3d 100,
103, 483 N.E.2d 150, the Ohio Supreme Court concluded that promissory estoppel can be used to limit a contract
which is otherwise terminable at will. In Hedrick v. Center for Comprehensive Alcoholism Treatment (1982), 7
Ohio App. 3d 211, and Helle v. Landmark, Inc. (1984), 15 Ohio App. 3d 1, the First and Sixth Appellate Courts,
respectively, recognized promissory estoppel as a viable exception to rebut a presumption that the employment was
18
COMMON PLEAS COURT OF OTTAWA COUNTY
death benefits to Ms. Meek, because he was the named beneficiary under the life insurance
policy in question.
C.
Defendants did not Fraudulently Misrepresent the Intent and Purpose of the
Contract or the Insurance Policy Under Which Defendant was the Named
Beneficiary
{¶44} Plaintiffs’ allege that Defendant fraudulently misrepresented to the decedent, the
intent and purpose of the contract and the insurance policies. Defendants assert, however, “there
was no intent to mislead by Dr. Solze when he, himself, established Dr. Meek as the designated
beneficiary under the policy on his life. An action for fraudulent misrepresentation requires
proof of (1) a representation; (2) which is material to the transaction; (3) made falsely, with
knowledge of or reckless disregard as to its falsity; (4) with the intent of misleading another into
relying on it; (5) justifiable reliance on the misrepresentation or concealment, and (6) resulting
injury proximately caused by the reliance. 63
{¶45} Here, the issue is whether evidence relating to Plaintiff’s claim of fraudulent
misrepresentation is barred by the parol evidence rule. In Galmish v. Cicchini, 64 the Supreme
Court of Ohio stated that “absent fraud, mistake or other invalidating cause, the parties’ final
written integration of their agreement may not be varied, contradicted or supplemented by
at-will. However, a promise is a necessary element for a claim of promissory estoppel. Mers v. Dispatch Printing
Co. (185), 19 Ohio St.3d 100, 103, 483 N.E.2d 150. Here, Plaintiffs are not contesting the discharge, or otherwise
asserting that a promise was made by Defendant and which induced such action or forbearance by the decedent.
63
Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St. 3d 69, 491 N.E.2d 1101, paragraph two of the syllabus,
citing Cohen v. Lamko (1984), 10 Ohio St. 3d 167, 462 N.E.2d 407; Brewer v. Brothers (1992), 82 Ohio App. 3d
148, 611 N.E.2d 492.
64
Galmish v. Cicchini (2000), 90 Ohio St. 3d 22, 2000 Ohio 7, 734 N.E.2d 782, 2000 Ohio LEXIS 2286.
19
COMMON PLEAS COURT OF OTTAWA COUNTY
evidence of prior or contemporaneous oral agreements, or prior written agreements.” 65 Despite
its name, the parol evidence rule is not a rule of evidence, nor is it a rule of interpretation or
construction. 66
“The parol evidence rule is a rule of substantive law which, when applicable,
defines the limits of a contract.” 67
{¶46} In the case sub judice, the 1998 contract expressly states “In the event of the death
of Doctor [Meek] or of Dale A. Solze, M.D. the sole shareholder of Company, it is agreed that
each party shall maintain a life insurance policy in the amount of $100,000 upon the life of the
other, which policy amount shall be paid to the spouse or other designated beneficiary as full
payment for all supplies, records, and equipment in regards to the Port Clinton Office.” 68 The
insurance policy upon Dr. Meek’s life designated Defendant as the beneficiary.
{¶47} Nevertheless, the parol evidence rule does not prohibit a party from introducing
parol or extrinsic evidence for the purpose of proving fraudulent inducement. 69 As the Court in
Galmish observed, “The principle which prohibits the application of the parol-evidence rule in
cases of fraud inducing the execution of a written contract * * * has been regarded as being as
important and as resting on as sound a policy as the parol-evidence rule itself. It has been said
that if the courts were to hold, in an action on a written contract, that parol evidence should not
be received as to false representations of fact made by the plaintiff, which induced the defendant
to execute the contract, they would in effect hold that the maxim that fraud vitiates every
65
Galmish v. Cicchini (2000), 90 Ohio St. 3d 22, 2000 Ohio 7, 734 N.E.2d 782, 2000 Ohio LEXIS 2286 11, citing
Williston on Contracts (4 Ed.1999) 569-570, Section 33:4.
66
Charles A. Burton, Inc. v. Durkee (1952), 158 Ohio St. 313, 324, 179, 109 N.E.2d 265, 270.
67
Charles A. Burton, Inc. v. Durkee (1952), 158 Ohio St. 313, 324, 179, 109 N.E.2d 265, 270, paragraph one of the
syllabus.
68
See Contract for Services (November 1, 1998), attached to Complaint and to Plaintiffs’ Response in Opposition to
the Defendants’ Motion for Summary Judgment and Memorandum.
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COMMON PLEAS COURT OF OTTAWA COUNTY
transaction is no longer the rule; and such a principle would in a short time break down every
barrier which the law has erected against fraudulent dealing.” 70
{¶48} However, the Court also emphasized “it was never intended that the parol
evidence rule could be used as a shield to prevent the proof of fraud, or that a person could
arrange to have an agreement which was obtained by him through fraud exercised upon the other
contracting party reduced to writing and formally executed, and thereby deprive the courts of the
power to prevent him from reaping the benefits of his deception or chicanery.” 71
{¶49} Holding that the parol evidence rule may not be avoided “by a fraudulent
inducement claim which alleges that the inducement to sign the writing was a promise, the terms
of which are directly contradicted by the signed writing,” the Court in Galmish stated, “an oral
agreement cannot be enforced in preference to a signed writing which pertains to exactly the
same subject matter, yet has different terms.” 72 The Court in Galmish further observed that
while “the Parol Evidence Rule will not exclude evidence of fraud which induced the written
contract * * * a fraudulent inducement case is not made out simply by alleging that a statement
or agreement made prior to the contract is different from that which now appears in the written
69
Drew v. Christopher Constr. Co., Inc. (1942), 140 Ohio St. 1, 41 N.E.2d 1018, paragraph two of the syllabus. See
Union Mut. Ins. Co. of Maine v. Wilkinson (1871), 80 U.S. (13 Wall.) 222, 231-232, 20 L. Ed. 617, 622.
70
Galmish v. Cicchini (2000), 90 Ohio St. 3d 22, 2000 Ohio 7, 734 N.E.2d 782, 2000 Ohio LEXIS 2286, quoting
Annotation, Parol-Evidence Rule; Right to Show Fraud in Inducement or Execution of Written Contract (1928), 56
A.L.R. 13, 34-36.
71
Galmish v. Cicchini (2000), 90 Ohio St. 3d 22, 2000 Ohio 7, 734 N.E.2d 782, 2000 Ohio LEXIS 2286, quoting 37
American Jurisprudence 2d (1968) 621-622, Fraud and Deceit, Section 451.
72
Marion Prod. Credit Assn. v. Cochran (1988), 40 Ohio St. 3d 265, 533 N.E.2d 325, paragraph three of the
syllabus. See Ed Schory & Sons, Inc. v. Soc. Natl. Bank (1996), 75 Ohio St. 3d 433, 440, 662 N.E.2d 1074, 1080.
21
COMMON PLEAS COURT OF OTTAWA COUNTY
contract.” Rather, “attempts to prove such contradictory assertions is exactly what the Parol
Evidence Rule was designed to prohibit.” 73
{¶50} In Ed Schory & Sons, Inc., 74 the Ohio Supreme Court noted that a prior statement
or agreement that is different from that which is contained in the written contract, does not
suffice to overcome the parol evidence rule. Here, this case involves a writing signed by both
parties to the contract, and the issue is whether the contract is being contradicted under Plaintiffs’
claim. This Court finds that Plaintiffs’ claim that Defendant fraudulently misrepresented to the
decedent, the intent and purpose of the contract and the insurance policies, does contradict the
plain language of the contract.
{¶51} Under this construction of Plaintiffs’ claim of fraudulent misrepresentation, none
of the extrinsic evidence presented by Plaintiffs may be admitted because it does nothing more
than establish parol promises that contradict or vary the unambiguous terms of the written
contract. But it appears that the essence of Plaintiffs’ fraudulent misrepresentation claim is that
Defendant never intended that Mrs. Meek would receive any insurance proceeds from the death
of Dr. Meek at the time he executed the written contract and, therefore, made a promise with
intent not to perform. 75
{¶52} In Galmish, the Court noted that “the rule excluding parol evidence of collateral
promises to vary a written contract does not apply where such contract is induced by promises
73
Galmish v. Cicchini (2000), 90 Ohio St. 3d 22, 2000 Ohio 7, 734 N.E.2d 782, 2000 Ohio LEXIS 2286, citing
Shanker, Judicial Misuses of the Word Fraud to Defeat the Parol Evidence Rule and the Statute of Frauds (With
Some Cheers and Jeers for the Ohio Supreme Court) (1989), 23 Akron L.Rev. 1, 7.
74
Ed Schory & Sons, Inc. v. Soc. Natl. Bank (1996), 75 Ohio St. 3d 433, 440, 662 N.E.2d 1074, 1080.
75
Galmish v. Cicchini (2000), 90 Ohio St. 3d 22, 2000 Ohio 7, 734 N.E.2d 782, 2000 Ohio LEXIS 2286. See 37
American Jurisprudence 2d, (1968), at 104-109, Sections 68 and 69; 5 American Jurisprudence POF 2d (1975) 727,
Promise Made With Intent Not to Perform.
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COMMON PLEAS COURT OF OTTAWA COUNTY
fraudulently made, with no intention of keeping them * * *.” 76 However, the parol evidence rule
does apply “if the evidence in question is offered to show a promise which contradicts an
integrated written agreement. Unless the false promise is either independent of or consistent with
the written instrument, evidence thereof is inadmissible.” 77 The California Supreme Court in
Bank of America Nat'l Trust & Sav. Asso. v. Pendergrass, 78 observed that “the rule which
permits parol evidence of fraud to establish the invalidity of the instrument is that it must tend to
establish some independent fact or representation, some fraud in the procurement of the
instrument or some breach of confidence concerning its use, and not a promise directly at
variance with the promise of the writing.”
{¶53} The evidence Plaintiff relies upon does not rest on any prior agreements or
promises at all. Instead, they rest on the alleged representations of a third party and “contradict
the promise of the writing.” Nor have Plaintiffs offered any independent fact or representations
to support their assertions that Dr. Solze promised or agreed to convey the insurance proceeds to
Mrs. Meek, and which is not “directly at variance with the promise of the writing.”
{¶54} Here, Plaintiffs seek to introduce the deposition testimony of T. Donald
Dougherty, which they assert reflects the intent of the parties that the death benefits flow to the
decedent’s spouse. Mr. Dougherty testified that both Dr. Meek and Dr. Solze purchased a
76
Galmish v. Cicchini (2000), 90 Ohio St. 3d 22, 2000 Ohio 7, 734 N.E.2d 782, 2000 Ohio LEXIS 2286, citing 37
American Jurisprudence 2d, (1968) at 623, Section 452.
77
Alling v. Universal Mfg. Corp. (1992), 5 Cal. App. 4th 1412, 1436, 7 Cal. Rptr. 2d 718, 734. See Bank of America
Nat'l Trust & Sav. Asso. v. Pendergrass (1935), 4 Cal. 2d 258, 263, 4 Cal. 2d 258, 48 P.2d 659, 1935 Cal. LEXIS
538; West v. Henderson (1991) 227 Cal.App.3d 1578, 1583-1584; Continental Airlines, Inc. v. McDonnell Douglas
Corp. (1989) 216 Cal.App.3d 388, 418-421.
78
Bank of America Nat'l Trust & Sav. Asso. v. Pendergrass (1935), 4 Cal. 2d 258, 263, 4 Cal. 2d 258, 48 P.2d 659,
1935 Cal. LEXIS 538.
23
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“Business Continuation Policy” from him and it was to provide that “On the death of either/or,
the benefits goes to the surviving spouse, so they would have no part of the business.” 79
{¶55} Asserting that the purpose of this “Business Continuation Policy” was to establish
a “buy-sell agreement” Mr. Dougherty testified that “A buy-sell agreement facilitates orderly
transfer of a deceased’s ownership interest in the business.” 80 As such, Mr. Dougherty insisted
that the parties could not name their spouse as the beneficiary on a buy-sell agreement,
testifying, “[I]t would be personal, not business.” 81 And Mr. Dougherty described the buy-sell
agreement as “a way of continuing the business as a sole proprietor instead of a partnership. It
buys the other person’s interests out. * * * It would take care of the family of the decedent and
then they would say bye bye to the business.” 82
Thus, Mr. Dougherty contended that the
proceeds “would go to the family of the one who had died.” 83
{¶56} However, Mr. Dougherty’s testimony must be excluded because it cannot serve to
prove what the agreement was, this being determined as a matter of law to be the writing itself.
Further, the affidavits of David Meek, Bryan Meek, and Brad Meek, and the deposition
testimony of Bonnie Solze or Russell Stoner do not offer any evidence to suggest that prior to
decedent’s death; Dr. Solze had pledged to convey the death benefits to Mrs. Meek. Finally,
Mrs. Meek was unable to point to any statement made by the Defendant prior to decedent’s death
that she believed was false. But Mrs. Meek protested that Dr. Solze had misrepresented the
intent and purpose of the insurance policy, “allowing my husband to believe that, that the
79
Deposition of T. Donald Dougherty, 85.
Deposition of T. Donald Dougherty, 129.
81
Deposition of T. Donald Dougherty, 132: 25 – 133: 1.
82
Deposition of T. Donald Dougherty, 134: 9 – 16.
83
Deposition of T. Donald Dougherty, 135: 9.
80
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insurance policy was what it was, what it was supposed to be,” asserting “that’s pretty
obvious.” 84 Yet, when asked whether there were any statements that she believed were false, she
stated “I don’t think I can – I don’t know. Right now I don’t think I can answer that question.” 85
{¶57} As the Supreme Court of California In re Gaines Estate, 86 noted “The rule comes
into operation when there is a single and final memorial of the understanding of the parties.
When that takes place, prior and contemporaneous negotiations, oral or written, are excluded; or,
as it is sometimes said, the written memorial supersedes these prior or contemporaneous
negotiations.”
{¶58} But the parol evidence rule, which “proscribes evidence to vary the terms of a
written agreement by showing prior or contemporaneous oral statements, * * * has no
application to evidence concerning subsequent oral modifications of a written agreement [.]” 87
Although Plaintiffs assert that Dr. Solze represented to them after decedents’ death that Mrs.
Meek would receive the death benefits, the affidavits of David Meek, Bryan Meek, and Brad
Meek, and the deposition testimony of Mrs. Meek and Mr. Dougherty, however, do not offer any
evidence to suggest that prior to decedent’s death, Dr. Solze represented to decedent that he
would convey the death benefits to Mrs. Meek. Accordingly, Plaintiffs have failed to offer
evidence of a subsequent oral agreement or promise by Dr. Solze.
{¶59} Based on this evidence, Plaintiffs have failed to present evidence that Defendant
obtained decedent’s death benefits based on fraudulent misrepresentations concerning the intent
and purpose of the insurance policy, or that Defendant mislead decedent in order to obtain his
84
85
Deposition of Sharon O. Meek, 136.
Deposition of Sharon O. Meek, 137.
25
COMMON PLEAS COURT OF OTTAWA COUNTY
agreement to the November 1, 1998 contract, which contained the terms to which they had
previously agreed to. In other words, Plaintiffs’ parol evidence does not relate to the terms of the
agreement but, rather, to the validity of the agreement. The parol evidence rule does not prohibit
the admission of extrinsic evidence for that purpose. 88
{¶60} Thus, this Court concludes the parol evidence regarding the circumstances
surrounding the signing of the November 1996 and 1998 contracts is barred. The extrinsic
evidence in the form of Mrs. Meek’s deposition testimony, the affidavits of David Meek, Bryan
Meet and Brad Meek, as well as the deposition testimony of Mr. Dougherty and Russell Stoner
fails to show that the Defendant fraudulently misrepresented to the decedent, the intent and
purpose of the insurance policies. Instead, the testimony of Mr. Dougherty reflects that he
misunderstood the restriction against the spouse as the named beneficiary and failed to set up the
insurance policies accordingly, or that Defendant simply breached the terms of the 1998 contract
when he decided to retain the death benefits.
{¶61} Because Plaintiffs have failed to produce any evidence demonstrating that a
genuine issue of material fact exists, this Court finds that Plaintiffs may not recover on its claim
for fraudulent misrepresentation.
86
In re Gaines Estate (1940), 15 Cal. 2d 255, 264-265, 100 P.2d 1055, 1060.
Conklin v. Conklin, 5th Dist. No. 92CAE07023, 1993 Ohio App. LEXIS 2793.
88
See Galmish v. Cicchini (2000), 90 Ohio St. 3d 22, 2000 Ohio 7, 734 N.E.2d 782, 2000 Ohio LEXIS 2286.
87
26
COMMON PLEAS COURT OF OTTAWA COUNTY
D.
Plaintiffs’ are not Entitled to Receive the Death Benefits under the doctrine
of Constructive Trust
{¶62} Plaintiffs assert that “Defendants under the doctrine of constructive trust, in
addition to the provisions of the contract, are obligated to the Plaintiffs for said $100,000.00,
plus interest, which sums the Defendants received as a result of the death of Charles R. Meek,
but to which they were not entitled, and which property belongs to the Plaintiffs. Defendants
argue, however, that Plaintiffs’ claim under the doctrine of constructive trust must fail because
“The undisputed material facts establish that there was no fraud committed by Defendants.” 89
{¶63} In University Hospitals of Cleveland, Inc. v. Lynch, 90 the Ohio Supreme Court
adopted the following definition of a constructive trust: “‘[A] trust by operation of law which
arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by
duress or abuse of confidence, by commission of wrong, or by any form of unconscionable
conduct, artifice, concealment, or questionable means, or who in any way against equity and
good conscience, either has obtained or holds the legal right to property which he ought not, in
equity and good conscience, hold and enjoy. It is raised by equity to satisfy the demands of
justice.’” 91
{¶64} In Dixon v. Smith, the Third Appellate Court held “A constructive trust arises by
operation of law against one who through any form of unconscionable conduct holds legal title to
89
Defendants’ Memorandum in Support of Motion for Summary Judgment, at 11.
University Hospitals of Cleveland, Inc. v. Lynch (2002), 96 Ohio St. 3d 118, 2002 Ohio 3748, 772 N.E.2d 105,
2002 Ohio LEXIS 1740.
91
Ferguson v. Owens (1984), 9 Ohio St.3d 223, 225, 459 N.E.2d 1293, quoting 76 American Jurisprudence 2d
(1975) 446, Trusts, Section 221.
90
27
COMMON PLEAS COURT OF OTTAWA COUNTY
property where equity and good conscience demands that he should not hold such title.” 92 The
imposition of a constructive trust is usually associated with the acquisition of property by
fraud. 93 Unjust enrichment of a person occurs when he or she “has and retains money or benefits
which in justice and equity belong to another.” 94 More particularly, the trust arises “‘against one
who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of
wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means,
or who in any way against equity and good conscience, either has obtained or holds the legal
right to property which he ought not, in equity and good conscience, hold and enjoy.’” 95 The
basis of a constructive trust is the unjust enrichment that would result if the person having title to
the property were permitted to retain it. 96
{¶65} A constructive trust is imposed “not because of the intention of the parties but
because the person holding the title to property would profit by a wrong, or would be unjustly
enriched if he were permitted to keep the property.” 97 In other words, a constructive trust is
imposed irrespective of the intention of the parties. 98
And a party seeking to impose a
constructive trust has the burden of establishing by clear and convincing evidence the facts or
conditions that give rise to a constructive trust. 99
92
Dixon v. Smith (1997), 119 Ohio App. 3d 308, 319, 695 N.E.2d 284.
Aetna Life Ins. Co. v. Hussey (1992), 63 Ohio St.3d 640, 642, 590 N.E.2d 724.
94
Hummel v. Hummel (1938), 133 Ohio St. 520, 528, 14 N.E.2d 923.
95
Ferguson v. Owens (1984), 9 Ohio St. 3d 223, 225, 459 N.E.2d 1293, quoting 76 American Jurisprudence 2d
(1975), 446, Trusts, Section 221.
96
Ferguson v. Owens (1984), 9 Ohio St. 3d 223, 226, 459 N.E.2d 1293; Concepcion v. Concepcion (1999), 131
Ohio App. 3d 271, 278, 722 N.E.2d 176; Gabel v. Richley (1995), 101 Ohio App. 3d 356, 363, 655 N.E.2d 773;
Croston v. Croston (1969), 18 Ohio App. 2d 159, 162-163, 247 N.E.2d 765.
97
Restatement of the Law, Restitution, Section 160, Comment b.
98
Hill v. Hill, 10th Dist. No. 01AP-716, 2002 Ohio App. LEXIS 725. See Gabel v. Richley (1995), 101 Ohio App.
3d 356, 363, 655 N.E.2d 773; Katz v. Banning (1992), 84 Ohio App. 3d 543, 552, 617 N.E.2d 729.
99
Concepcion v. Concepcion (1999), 131 Ohio App. 3d 271, 278, 722 N.E.2d 176; Eckenroth v. Stone (1959), 110
Ohio App. 1, 6, 158 N.E.2d 382.
93
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COMMON PLEAS COURT OF OTTAWA COUNTY
{¶66} In the case sub judice, this Court found that the 1998 contract was continued for
an additional two-year term by assent of the parties, pursuant to Ojalvo and application of a
similar rule in regard to leases. As such, it was in “full force and effect” at the time of
decedent’s death.
Further, this Court found the plain language of the contact not to be
ambiguous, and that it provided in relevant part: “each party shall maintain a life insurance
policy in the amount of $100,000 upon the life of the other, which policy amount shall be paid to
the spouse or other designated beneficiary.”
{¶67} Although Plaintiffs have failed to produce any evidence demonstrating that a
genuine issue of material fact exists with respect to its claim for fraudulent misrepresentation, the
Ohio Supreme Court in Ferguson v. Owens, 100 noted “[A] constructive trust may also be
imposed where it is against the principles of equity that the property be retained by a certain
person even though the property was acquired without fraud.” 101 As such, whether Defendant
fraudulently misrepresented the intent and purpose of the insurance policies is irrelevant in
determining whether a constructive trust arises by operation of law. Instead, a constructive trust
may be imposed if Plaintiffs can demonstrate that Defendants’ breached the contract.
In
Ferguson, the Ohio Supreme Court applied the well-known equitable maxim, “equity regards
done that which ought to be done.” But unlike Ferguson, no genuine issues of material fact exist
by which Plaintiffs can demonstrate that Defendants breached the 1998 contract.
{¶68} In determining the equities as between the title owner of the insurance policies at
issue and the named beneficiaries by the terms of the contract, this Court finds that the evidence
100
Ferguson v. Owens (1984), 9 Ohio St. 3d 223, 225, 459 N.E.2d 1293.
See 53 Ohio Jurisprudence 2d (1962) 578-579, Trusts, Section 88; V Scott on Trusts (3 Ed. 1967) 3412, Section
462.
101
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presented to this Court do not create any genuine issues of material fact. Here, the parties
mutually agreed that life insurance would be procured upon the life of the other in the amount of
$100,000.00 and that the parties would be the title owners of the policies with each other as the
named beneficiary of the policy under the terms of the contract.
{¶69} Thus, pursuant to the terms of the contract, Dr. Solze was the named beneficiary
and was entitled to the proceeds from the insurance policy. As such, a constructive trust fails to
arise by operation of law and Defendant may “in equity and good conscience, hold and enjoy”
the insurance proceeds. 102
E.
Defendants Did Not Engage in Any Willful or Wanton Misconduct
{¶70} Plaintiffs assert that as “a result of Defendants’ [] willful and wanton misconduct
and actions,” they are “entitled to punitive damages and attorney fees.” 103 Defendants assert,
however, that “such damages are not recoverable for a breach of contract,” 104 and that “Wanton
misconduct and willful misconduct are not separate causes of action,” 105 because Defendants’
failure to pay over the proceeds to Mrs. Meek or their notice of termination do not “rise to the
level of wanton and willful misconduct.” 106
{¶71} Defendants rely upon Ketcham v. Miller, 107 and Digital & Analog Design Corp. v.
North Supply Co., 108 in asserting that damages are not recoverable for breach. In R&H Trucking,
102
Ferguson v. Owens (1984), 9 Ohio St. 3d 223, 225, 459 N.E.2d 1293, quoting 76 American Jurisprudence 2d
(1975), 446, Trusts, Section 221.
103
Complaint, at 5.
104
Defendants’ Memorandum in Support of Motion for Summary Judgment, at 12.
105
Defendants’ Memorandum in Support of Motion for Summary Judgment, at 13.
106
Defendants’ Memorandum in Support of Motion for Summary Judgment, at 14.
107
Ketcham v. Miller (1922), 104 Ohio St. 372; 136 N.E. 145; 1922 Ohio LEXIS 337.
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COMMON PLEAS COURT OF OTTAWA COUNTY
Inc. v. Occidental Fire and Cas. Co., 109 the Tenth Appellate Court acknowledged, “It is well
settled in this state that punitive damages are not recoverable in an action for breach of contract,
even though it is alleged that the breach was unlawful, wilful, wanton, and malicious.” 110
However, the Court noted “On the other hand, in an action for a tort which involves the
ingredients of fraud, malice, or insult, a jury may go beyond the rule of mere compensation, and
award punitive damages.” 111
{¶72} Thus, in R&H Trucking, Inc., the Court held “punitive damages are recoverable
for a tort committed in connection with, but independently of, a breach of contract, the allowance
of the punitive damages being for the tort, and not for the breach of the contract. However, the
breach must be attended by some intentional wrong or gross negligence which amounts to an
independent tort, and must be accompanied by the attendant aggravating circumstances of
wanton, reckless, malicious, or oppressive conduct that ordinarily gives rise to punitive
damages.” 112
{¶73} In the case sub judice, Plaintiffs fail to demonstrate the existence of either of the
two exceptions which would allow an award of damages. This Court found that no genuine
issues of material fact exist as to whether Defendant breached the contract, and no evidence
reflects that Defendant committed separate and distinct malicious or oppressive tortious acts that
would have entitled her to punitive damages. Further, Plaintiffs have failed to demonstrate the
108
Digital & Analog Design Corp. v. North Supply Co. (1989), 44 Ohio St. 3d 36; 540 N.E.2d 1358; 1989 Ohio
LEXIS 143
109
R&H Trucking, Inc. v. Occidental Fire and Cas. Co. (1981), 2 Ohio App.3d 269, 271, 441 N.E.2d 816.
110
See Host v. Ursem, 8th Dist. No. 63109, 1993 Ohio App. LEXIS 3514.
111
Roberts v. Mason (1859), 10 Ohio St. 277.
112
R&H Trucking, Inc. v. Occidental Fire and Cas. Co. (1981), 2 Ohio App.3d 269, 441 N.E.2d 816.See Saberton v.
Greenwald (1946), 146 Ohio St. 414, 66 N.E.2d 224, 1946 Ohio LEXIS 334; Sweet v. Grange Mut. Cas. Co .(1975),
50 Ohio App. 2d 401, 364 N.E.2d 38, 1975 Ohio App. LEXIS 5925.
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COMMON PLEAS COURT OF OTTAWA COUNTY
existence of any evidence which would establish a tort that is independent of Plaintiffs’ principal
claim of breach of contract. Thus, Defendant is entitled to summary judgment as to Plaintiff’s
claim for punitive damages related to the breach of contract claim.
{¶74} As well, Plaintiffs have alleged that Defendant “acted negligently * * * causing
both Plaintiff, and her decedent, serious emotional distress and anguish.” 113 But again, Plaintiffs
have failed to produce any evidence demonstrating that a genuine issue of material fact exists.
Ohio courts have allowed punitive damages based both upon punitive, as well as deterrent,
philosophies. 114 But in seeking punitive damages, the Plaintiff must first show that Ohio courts
recognize a separate tort for negligent infliction of emotional distress in the employment context,
or that there was any evidence of actual physical peril 115 Because Plaintiffs have failed to
produce any evidence demonstrating that a genuine issue of material fact exists, this Court has
determined that Plaintiffs may not recover for emotional harm negligently inflicted by the
Defendant. Having found that Defendant is entitled to summary judgment on the claim for
negligent infliction of emotional distress, this Court also finds that summary judgment is proper
on Plaintiffs’ claim for punitive damages. Thus, Defendant is entitled to summary judgment as
to Plaintiff’s claim for punitive damages related to Plaintiff’s claim of negligent infliction of
emotional distress.
113
Complaint, at 3.
Digital & Analog Design Corp. v. North Supply Co. (1989), 44 Ohio St. 3d 36; 540 N.E.2d 1358; 1989 Ohio
LEXIS 143. See, e.g., Simpson v. McCaffrey (1844), 13 Ohio 508, 522; Roberts v. Mason (1859), 10 Ohio St. 277;
Atlantic & G.W. Ry. Co. v. Dunn (1869), 19 Ohio St. 162, 172; Detling v. Chockley (1982), 70 Ohio St. 2d 134, 24
O.O. 3d 239, 436 N.E. 2d 208; Preston v. Murty (1987), 32 Ohio St. 3d 334, 512 N.E. 2d 1174.
115
Heiner v. Moretuzzo, (1995), 73 Ohio St. 3d 80, 87; See Kulch v. Structural Fibers (1997), 78 Ohio St. 3d 134,
1997 Ohio 219, 677 N.E.2d 308,1997 Ohio LEXIS 836; Bunger v. Lawson (1998), 82 Ohio St. 2d 463, 82 Ohio St.
3d 463, 696 N.E.2d 1029, 1998 Ohio LEXIS 2190; Dobran v. Franciscan Med. Ctr. (2004), 102 Ohio St. 3d 54,
2004 Ohio 1883, 806 N.E.2d 537, 2004 Ohio LEXIS 874; Masney v. Rhodes, 7th Dist. No. 02 CA 241, 2004 Ohio
114
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COMMON PLEAS COURT OF OTTAWA COUNTY
{¶75} Further, Plaintiffs have alleged that Defendant fraudulently misrepresented to the
decedent, the intent and purpose of the insurance policies. However, in Kovacic v. All States
Freight Systems, 116 the Eighth Appellate Court noted “It is not every fraud claim that evokes the
extraordinary remedy of punitive damages. In cases alleging fraud, in order to be awarded
punitive damages, the plaintiff must establish not only the elements of the tort itself, but must
also show either the fraud is aggravated by the existence of malice or ill will or must demonstrate
that the wrongdoing is particularly gross or egregious.” 117 There must be an element of malice,
oppressive conduct or outrage to sustain such an award. Plaintiffs have failed to demonstrate
that any genuine issues of material fact exist with respect to fraud. Therefore, Defendant is
entitled to summary judgment as to Plaintiff’s claim for punitive damages related to Plaintiff’s
claim of fraudulent misrepresentation.
{¶76} Plaintiffs also suggest that a cause of action exists in “Willful Tort,” alleging that
“as a result of Defendants’ [] willful and wanton misconduct and actions, the Plaintiffs are
entitled to punitive damages and attorney fees.” 118 Plaintiffs assert that “any general knowledge
or information that other persons are placed in a position of peril by his reckless and heedless
conduct” 119 is sufficient to support a cause of action for willful tort.
{¶77} But in Tighe v. Diamond, 120 the Ohio Supreme Court observed that “The term,
‘willful tort,’ implies an intent or purpose to injure.
It is not synonymous with ‘wanton
4817, 2004 Ohio App. LEXIS 4352; Audia v. Rossi Bros. Funeral Home, Inc., 7th Dist. No. 98 CA 181, 140 Ohio
App. 3d 589, 2000 Ohio 2677, 748 N.E.2d 587, 2000 Ohio App. LEXIS 6273.
116
Kovacic v. All States Freight Systems, 8th Dist. No. 69926, 1996 Ohio App. LEXIS 3474.
117
Atram v. Star Tool & Die Corp. (1989), 64 Ohio App. 3d 388, 581 N.E.2d 1110; Mid-America Acceptance Co. v.
Lightle (1989), 63 Ohio App.3d 590, 602, 579 N.E.2d 721.
118
Complaint, at 5.
119
Plaintiffs’ Response in Opposition to the Defendants’ Motion for Summary Judgment and Memorandum, at 30.
120
Tighe v. Diamond (1948), 149 Ohio St. 520, 80 N.E.2d 122, 1948 Ohio LEXIS 493.
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misconduct’ or ‘willful misconduct.’” The Court further observed that “Willful tort” involves
design, set purpose or intention to injure. It is not negligence. 121 Rather, there must be a design,
purpose or intent not only to do wrong but to inflict injury. 122
{¶78} In order that one may be guilty of “willful misconduct,” an actual intention to
injure need not be shown. 123 Instead, “There is a constructive intention as to the consequences,
which, entering into the willful, intentional act, the law imputes to the offender, and in this way a
charge which otherwise would be mere negligence, becomes, by reason of a reckless disregard of
probable consequences, a willful wrong.” 124
{¶79} Undoubtedly, there was no intent to injure decedent, but Defendant had the
capacity to appraise his conduct and appreciate the consequences, when he terminated decedent’s
employment. Defendant knew that decedent would not be back to work and that decedent was
receiving hospice care. Yet, the intentional execution of a proper course of conduct does not
give rise to conduct that was “clearly wrong” and from which, willful misconduct can be
inferred.
{¶80} “Wanton misconduct,” however, comprehends an entire absence of all care for the
safety of others and an indifference to consequences. 125 In Tighe, the Ohio Supreme Court held
that “wanton misconduct * * * implies a failure to exercise any care toward those to whom a
duty of care is owing when the probability that harm will result from such failure is great, and
such probability is known to the actor. It is not necessary that an injury be intended or that there
121
Tighe v. Diamond (1948), 149 Ohio St. 520, 80 N.E.2d 122, 1948 Ohio LEXIS 493. See Denzer v. Terpstra
(1934), 129 Ohio St. 1, 3, 193 N. E. 647; Reserve Trucking Co. v. Fairchild, 128 Ohio St. 519, 191 N. E., 745.
122
Rothman v. Metropolitan Casualty Ins. Co., 134 Ohio St. 241, 16 N.E.2d 417.
123
Bedwell v. DeBolt, 221 Ind., 600, 50 N. E.2d 875; Baines v. Collins, 310 Mass., 523, 38 N. E.2d, 626.
124
Baines v. Collins (1942), 310 Mass., 523, 38 N.E.2d 626.
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COMMON PLEAS COURT OF OTTAWA COUNTY
be any ill will on the part of the actor toward the person injured as a result of such conduct.” 126
But here, Defendant did not owe a duty of care to decedent and was engaged in a lawful action
when he terminated decedent. Although Defendant’s act of terminating decedent may have been
thoughtless and demonstrated inattention to decedent’s physical state, it does not rise to the level
of wanton misconduct. In Brockman v. Bell, 127 the First Appellate Court stressed that “Wanton
misconduct is a degree greater than negligence.” 128
Here, there is no evidence in this case to
support the allegation of wanton misconduct. As such, Plaintiffs have failed to demonstrate that
any genuine issues of material fact exist with respect to willful and wanton misconduct.
Therefore, Defendant is entitled to summary judgment as to Plaintiff’s claim for punitive
damages related to Plaintiff’s claim of willful and wanton misconduct.
F.
Plaintiffs’ are Entitled to an Itemized Accounting
{¶81} Plaintiffs assert that they “are entitled to an itemized accounting regarding the
computation of the bonuses required under the contract pursuant to the contract paragraph 3.01.”
Defendants argue that “the written agreements were only in effect from 1996 through 2000” but
assert that the “depositions of Russell Stoner and Bonnie Solze establish that Plaintiffs have been
provided with an accounting regarding compensation to Dr. Meek for services rendered from the
125
Higbee Co. v. Jackson (1920), 101 Ohio St. 75, 128 N. E. 61.
Tighe v. Diamond (1948), 149 Ohio St. 520, 80 N.E.2d 122, 1948 Ohio LEXIS 493. See Matkovich v. Penn
Central Transp. Co. (1982), 69 Ohio St.2d 210, 23 O.O.3d 224, 431 N.E.2d 652 (wanton misconduct” as the failure
to exercise any care toward one to whom a duty of care is owed when the failure occurs under circumstances for
which the probability of harm is great and when the probability of harm is known to the tortfeasor.”); Hawkins v. Ivy
(1977), 50 Ohio St.2d 114, 363 N.E.2d 367; Tighe v. Diamond (1948), 149 Ohio St. 520, 80 N.E.2d 122, 1948 Ohio
LEXIS 493. See Universal Concrete Pipe Co. v. Bassett (1936), 130 Ohio St. 567, 200 N.E. 843; Conchin v. El
Paso & Southwestern Rd. Co. (1910), 13 Ariz. 259; 108, 1910 Ariz. LEXIS 94; Hiatt v. Northern Pacific Ry. Co.
(1926), 138 Wash. 558, 1926 Wash. LEXIS 1092.
127
Brockman v. Bell (1992), 78 Ohio App. 3d 508, 515, 605 N.E.2d 445, 1992 Ohio App. LEXIS 905.
126
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COMMON PLEAS COURT OF OTTAWA COUNTY
beginning of the employment relationship up through the date of death.” Plaintiffs’ Response in
Opposition to the Defendants’ Motion for Summary Judgment and Memorandum does not
address this issue further. A review of the depositions of Russell Stoner 129 and Bonnie Solze 130
reflect certain exhibits were provided which include an accounting of the compensation,
including bonuses, paid to decedent from 1996 to 2000. Thus, having found that Defendants
provided the requested information to Plaintiffs, this Court finds this issue to be moot.
III. CONCLUSION
{¶82} Defendants have established that no genuine issues of material fact exist and that
Plaintiffs cannot meet the standard for establishing (A) negligent infliction of emotional distress;
(B) breach of contract; (C) death benefits under the doctrine of constructive trust; (D) willful or
wanton misconduct; and (E) fraudulent misrepresentation. With respect to Plaintiff’s claim for
“an itemized accounting regarding the computation of the bonuses required under the
contract,” 131 this Court finds this issue to be moot, as Defendants has provided Plaintiffs with an
accounting of decedent’s compensation from 1996 to 2000. Accordingly,
{¶83} IT IS ORDERED, ADJUDGED, and DECREED that Defendants’ Motion for
Summary Judgment is GRANTED.
{¶84} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that this cause is
DISMISSED with costs to Plaintiffs
128
See Baber v. Dennis (1979), 66 Ohio App.2d 1, 419 N.E.2d 16.
Deposition of Russell Stoner, Exhibits 7-17.
130
Deposition of Bonnie Solze, Exhibits – None Marked.
131
Complaint, at 6.
129
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{¶85} Clerk of Courts shall send copies of this Decision and Order to all parties of
record or their counsel by regular U.S. Mail.
OCTOBER 13, 2005
PAUL C. MOON, JUDGE
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COMMON PLEAS COURT OF OTTAWA COUNTY
CERTIFICATE OF SERVICE
A copy of the foregoing “Decision and Order” was delivered by regular Mail, this 13th day of
October, 2005, to the following:
Michael W. Sandwisch
Post Office Box 129
Port Clinton, OH 43452
Attorney for Plaintiffs
David W. Stuckey
Robison, Curphey & O’Connell
Ninth Floor, Four Segate
Toledo, OH 43604
Attorney for Defendants
Alan R. McKean
McKean and McKean
161 W. Water Street
Oak Harbor, Oh 43449
Attorney for Defendants
______________________________
JOAN MONNETT, CLERK OF COURTS
/DEPUTY CLERK
OCTOBER 13, 2005
Note: If there is a party and/or attorney not listed above, but is reflected on the Clerk’s Docket
as not excused, the Clerk’s Office will add them to this page.
38