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[Cecil & Geiser, Llp Formerly v. Ronald E. Plymale et al

October 25, 2011

[CECIL & GEISER, LLP FORMERLY] THE PLYMALE PARTNERSHIP, LLP, PLAINTIFF-APPELLEE,
v.
RONALD E. PLYMALE ET AL., DEFENDANTS-APPELLANTS. [CECIL & GEISER, LLP FORMERLY] THE PLYMALE PARTNERSHIP, LLP, PLAINTIFF-APPELLANT,
v.
RONALD E. PLYMALE ET AL., DEFENDANTS-APPELLEES.



APPEALS from the Franklin County Court of Common Pleas (C.P.C. No. 09CVH-05-6776)

The opinion of the court was delivered by: Tyack, J.

Cite as Cecil & Geiser, L.L.P. v. Plymale,

(C.P.C. No. 09CVH-05-6776)

(REGULAR CALENDAR)

DECISION

{¶1} Plaintiff, Cecil & Geiser, LLP, appeals the decision of the Franklin County Court of Common Pleas. Defendants Ronald E. Plymale and the law firm Plymale & Dingus, LLC also appeal the decision of the trial court. For the following reasons, we remand this case to the trial court for further proceedings.

{¶2} Cecil & Geiser, LLP, formerly The Plymale Partnership, LLP ("Cecil & Geiser") assign the following errors:

I. The Trial Court bifurcated Count Four of the Amended Complaint for hearing but then erred when it dismissed the remaining counts after the December hearing regarding only Count Four without having allowed Plaintiff to present evidence in support of the remaining Counts of the Amended Complaint, including counts against Defendant Plymale & Dingus.

II. The damages the Trial Court determined Plaintiff sustained were inadequate in light of the uncontroverted testimony presented by Plaintiff.

III. Equity demands that the parties be returned to their original position as if no transaction had occurred between the parties. The [Trial] Court failed to calculate all monies paid by Plaintiff either directly to Defendant Plymale or paid in reliance of the agreement between Plaintiff and Defendant Plymale.

{¶3} Defendants Ronald Plymale and his current law firm Plymale & Dingus, LLC (collectively "defendants"), assign the following errors in their counter appeal:

I. The trial court erred in concluding that Ronald Plymale breached the Licensing Agreement of September 1, 2001 and as a result thereof, awarding summary judgment in favor of Plaintiffs-Appellees.

II. The trial court erred in considering parol evidence to modify the plain and unambiguous terms of the license agreement.

III. Assuming arguendo that plaintiff-appellees did in fact lose the right to continue use of the name "The Plymale Partnership" upon Defendant-Appellant's return to practice in Columbus, Ohio, then the trial court erred in its sua sponte dismissal of defendant's counterclaim.

Facts and Procedure of the Case

{¶4} This dispute concerns the "Plymale" trade name. Andrew Cecil, Michael Geiser, Ron Plymale, and another attorney, who subsequently left the firm, formed a limited liability partnership named Plymale & Associates. The name was changed to The Plymale Partnership in 2002 with partners Plymale, Cecil, and Geiser. In 2001, Mr. Plymale and his two partners began discussing his potential retirement from the firm and amended the partnership agreement with a License Agreement.

{¶5} The License Agreement provided that, upon Mr. Plymale's death or withdrawal from the firm, he would be paid a royalty of four percent of gross revenues payable quarterly for four years. In return, the partners could continue to use certain partnership assets, namely the firm's name, website, e-mail address, and phone numbers which were owned or leased by Mr. Plymale.

{¶6} Mr. Plymale withdrew from the law firm and the practice of law in June of 2003. He moved to Florida and engaged in real estate development. Mr. Plymale was fully paid under the terms of the License Agreement a total of $473,665.86. Cecil & Geiser continued to use the firm name "The Plymale Partnership" in their marketing efforts since the Plymale name was already firmly established in the central Ohio market, as well as the phone numbers and website previously associated with the firm. Between June 2003 and the first half of 2009, Cecil & Geiser spent more than $5 million in marketing the firm under the name The Plymale Partnership.

{¶7} This controversy began in 2008 when Mr. Plymale suggested that he might return to Columbus and run for judicial office. Cecil & Geiser informed Mr. Plymale that his return to practice in Columbus would violate the License Agreement and would require Cecil & Geiser to cease using the Plymale name.

{¶8} In March 2009, Mr. Plymale returned to practice law in central Ohio and formed Plymale & Dingus, LLC with attorney Shawn Dingus. Mr. Plymale, on June 8, 2009, demanded that Cecil & Geiser stop use of the Plymale name. Cecil & Geiser changed their firm name to Cecil & Geiser, LLP. Apart from an initial period whereby Cecil & Geiser also identified themselves as being formerly known as The Plymale Partnership, Cecil & Geiser ceased use of the name Plymale.

{¶9} Cecil & Geiser filed suit on May 5, 2009 in the Franklin County Court of Common Pleas claiming that Mr. Plymale had breached the License Agreement, been unjustly enriched, committed a fraud against Cecil & Geiser, and that Plymale & Dingus, LLC tortuously interfered with a contract. Defendants filed a counterclaim and Cecil & Geiser later filed a motion for partial summary judgment on count two, a breach of contract claim, alleging that Mr. Plymale breached the License Agreement. The trial court entered a decision granting Cecil & Geiser's motion for partial summary judgment on July 22, 2010.

{¶10} The trial court's July 22, 2010 decision made the following findings of fact: the contemplation of both parties at the time of License Agreement was that Mr. Plymale would retire from active trial practice in Ohio; in 2004, Mr. Plymale executed an affidavit in his divorce case stating that he had "retired" from the practice of law and "sold his law practice"; the parties intended arrangement was in the nature of a buy-out of the active law practice and good will developed by Mr. Plymale; after four years' of royalty payments, Cecil & Geiser would own the right to continue to use the name Plymale and the trade name "Plymale & Associates"; Mr. Plymale's $200,000 law firm capital account had been returned premised upon his "retirement"; Mr. Plymale retired from the active practice of law in Ohio; the License Agreement is only sensible if Mr. Plymale retires; and there is no genuine dispute of fact Mr. Plymale's return to the practice of law in Ohio deprived plaintiffs of the benefit of much of its bargain in the License Agreement.

{¶11} The trial court's July 22, 2010 decision made the following conclusions of law: partial summary judgment is granted on count four of the amended complaint based on plaintiff being denied the benefit of the bargain; the non-compete clause is not overly broad; the License Agreement must be subject to the Ohio Supreme Court Rules of Professional Conduct; under the Rules of Professional Conduct, Mr. Plymale was entitled to return to the practice of law in Ohio; Mr. Plymale is equitably obligated to repay some of the consideration received; this case is best analyzed as one demanding equitable remedy; and an equitable claim for promissory estoppel is pleaded in count four of Cecil & Geiser's amended complaint and that should be the focus of the case.

{¶12} The trial court stated that whether technically called a case for money had and received, or a case for quantum meruit, or for unjust enrichment, plaintiff is entitled to receive some equitable remedy for what occurred. The trial court also correctly stated that, on equitable claims, such as money had and received, quantum meruit, or unjust enrichment, no jury trial is available. Turturice v. AEP Energy Servs., Inc., 10th Dist. No. 06AP-1214, 2008-Ohio-1835.

{ΒΆ13} The trial court also stated: "Pursuant to Civ. R. 42, the court bifurcates the trial of Count Four in the First Amended Complaint (Promissory Estoppel) from further proceedings on Counts One - Three." (Decision ...


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