Court of Appeals of Ohio, Twelfth District, Fayette
DAVID R. GINN, DDS, Plaintiff-Appellant,
STONECREEK DENTAL CARE, Defendant-Appellee.
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. 12
Russell A. Kelm, for plaintiff-appellant.
& Lamping, LLP, Jeffrey R. Teeters, for
1} Plaintiff-appellant, David R. Ginn, DDS, appeals
a decision of the Fayette County Court of Common Pleas,
granting summary judgment in favor of defendant-appellee,
Stonecreek Dental Care ("Stonecreek Dental").
2} We have previously detailed the facts of
appellant's case as follows:
3} This appeal stems from the sale of a dental
practice owned by R. Douglas Martin, DDS, located in
Washington Court House. Ginn v. Stonecreek Dental
Care, 12th Dist. Fayette No. CA2014-06-015,
2015-Ohio-1600, ¶ 2 (Ginn I). In 2010, Dr. Ginn
was considering expanding his current dental practice, also
located in Washington Court House, and Dr. Martin was
interested in selling his practice. Id. Following
negotiations, Dr. Ginn and Dr. Martin entered a contract for
sale (contract) in which Dr. Ginn purchased "[a]ll
right, title and interest in and to the name R. Douglas
Martin, DDS, which name Seller warrants and represents to be
the only trade name and trademark used by Seller in the
course of its business" (goodwill provision).
Id. The contract provided Dr. Martin was prohibited
from engaging in business "within thirty (30)
miles" of Dr. Ginn's practice for "five (5)
years" from October 2010 (noncompete provision).
Id. Dr. Ginn and Dr. Martin also entered a separate
employment agreement whereby Dr. Martin was to work for Dr.
Ginn one day per week. Id. For various reasons, the
relationship between Dr. Ginn and Dr. Martin deteriorated,
and Dr. Martin's employment ended in April 2011.
4} Shortly after Dr. Martin stopped working for Dr.
Ginn, Dr. Martin began working for Stonecreek Dental one day
per week in its Chillicothe office, which is located within
30 miles of Dr. Ginn's dental practice. Id. at
¶ 3. Dr. Clark Sanders, DDS, an owner of Stonecreek
Dental, communicated with Dr. Martin during his hiring
process. Id. A business consultant for Stonecreek
Dental also communicated with Dr. Martin. Id. In
September 2011, Stonecreek Dental produced radio
advertisements using Dr. Martin's voice to encourage
people to see the dentists at Stonecreek Dental. Id.
Stonecreek Dental broadcasted these radio advertisements in
nearby areas, including Washington Court House. Id.
5} On November 15, 2012, Dr. Ginn filed a complaint
against Dr. Martin and Stonecreek Dental. Id. at
¶ 4. Relevant to this appeal, Dr. Ginn alleged that
Stonecreek Dental tortiously interfered with his business
relationships because it "induced and assisted Defendant
Martin in his wrongful conduct to cause Plaintiffs patients
to cease their business relationship with Plaintiff."
Id. Additionally, Dr. Ginn alleged Stonecreek Dental
knew of the contractual relationship between Dr. Ginn and Dr.
Martin, yet tortiously interfered with the contract.
Id. Specifically, Dr. Ginn claimed Stonecreek Dental
tortiously interfered with the contract by employing Dr.
Martin within the geographic area prohibited by the
noncompete provision and by using Dr. Martin's voice in
radio advertisements, which caused a loss of business
6} A jury trial began on May 20, 2014. Id.
at ¶ 5. At trial, Dr. Ginn elicited testimony from Dr.
Sanders that Dr. Martin had provided Dr. Sanders with a copy
of the contract and Dr. Martin assured Dr. Sanders working
for Stonecreek Dental would not be in violation of the
contract. Id. Furthermore, Dr. Sanders testified
that per MapQuest, Dr. Ginn's office was more than 30
miles away from Stonecreek Dental's office. Id.
Dr. Sanders admitted the radio advertisements were produced
for Stonecreek Dental using Dr. Martin's name and voice.
Id. An exhibit introduced at trial revealed the
advertisements using Dr. Martin's name and voice were
broadcast in Washington Court House beginning in September
2011 and ending in January 2013. Id.
7} Dr. Ginn testified on his own behalf detailing
his lost profits and stating that the only difference in the
way he practiced dentistry was that Dr. Martin had left.
Id. at ¶ 6. Dr. Ginn did not specifically
identify any of his patients who left his treatment for
Stonecreek Dental. Id. Dr. Ginn admitted people have
a choice as to which dentist they choose to see and stated
there are many reasons people stop seeing a specific dentist.
Id. Furthermore, Dr. Ginn opined that he does not
keep a record of where patients transfer. Id.
However, Dr. Ginn also testified that he had always treated
his patients well but that his business began declining
around the time Stonecreek Dental's radio advertisements
8} At the conclusion of Dr. Ginn's case, both
Stonecreek Dental and Dr. Martin moved for a directed
verdict. Id. at ¶ 7. Dr. Martin argued Dr. Ginn
failed to allege facts supporting his breach of contract
claim as well as that such claim proximately caused any
damages. Id. Dr. Martin further argued Dr. Ginn
failed to establish damages to a reasonable degree of
certainty. Id. The trial court denied Dr.
Martin's motion. Id. However, the trial court
granted a directed verdict in favor of Stonecreek Dental,
finding Dr. Ginn failed to show Stonecreek Dental possessed
the requisite intent to interfere. Id.
9} With respect to Dr. Martin, the trial proceeded
and the jury found he breached the noncompete provision and
awarded Dr. Ginn $125, 000 in damages, plus interest.
Ginn v. Stonecreek Dental Care, 12th Dist. Fayette
Nos. CA2015-01-001 and CA2015-01-002, 2015-Ohio-4452, ¶
5 (Ginn II). We affirmed Dr. Martin's subsequent
appeal from this judgment. Id. at ¶ 31,
jurisdiction declined by 145 Ohio St.3d 1422,
2016-Ohio-1173. Dr. Ginn appealed the trial court's
decision to grant a directed verdict in favor of Stonecreek
Dental, which we affirmed in part and reversed in part.
Ginn I at ¶ 37. We affirmed the trial
court's judgment granting a directed verdict in favor of
Stonecreek Dental regarding Dr. Ginn's tortious
interference with business relationships claim, reversed as
to Dr. Ginn's tortious interference with contract claim,
and remanded the matter for further proceedings. Id.
10} On remand, the trial court set a trial date in
June 2016, which the trial court continued because Stonecreek
Dental moved for summary judgment on the basis the trial
would be simply relitigating the damages already awarded from
the previous trial. In July 2016, Dr. Ginn moved to compel
discovery of financial information from Stonecreek Dental as
well as moved for leave to amend his complaint to request
emotional distress damages. The trial court orally granted
Dr. Ginn's motion to compel discovery. Before Dr. Ginn
received the requested information, the trial court granted
Stonecreek Dental's motion for summary judgment, denied
Dr. Ginn's motion for leave to amend his complaint, and
this appeal followed.