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DeLong v. Thompson

Court of Appeals of Ohio, Fifth District, Fairfield

March 1, 2018

JACOB DeLONG Plaintiff-Appellant
v.
MATT THOMPSON, et al. Defendants-Appellees

         Civil Appeal from the Court of Common Pleas, Case No. 15 CV 816

          For Plaintiff-Appellant PATRICK KASSON JACKIE JEWELL REMINGER CO., LPA

          For Defendant-Appellees D. JOE GRIFFITH DAGGER, JOHNSTON, MILLER OGILVIE & HAMPSON, LLP

          Hon. John W. Wise, P. J. Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J.

          OPINION

          Wise, P. J.

         {¶1} Appellant Jacob DeLong appeals from the decision of the Court of Common Pleas, Fairfield County, ruling in favor of Appellees Matt Thompson and Fence Solutions, Inc. following a bench trial.

         STATEMENT OF THE FACTS AND CASE

         {¶2} The relevant facts are as follows:

         {¶3} On December 30, 2015, Appellant Jacob Delong filed a Complaint in the Fairfield County Court of Common Pleas against Matt Thompson and Fence Solutions, Inc. alleging claims of Worker's Compensation Retaliation, Disability Discrimination, Violation of the Ohio Prompt Payment Act, and Failure to pay overtime wages under the Ohio Minimum Fair Wage Standards Act. Appellant also made a claim for punitive damages.

         {¶4} By Opinion and Entry filed March 7, 2017, Appellant's causes of action for Disability Discrimination and punitive damages were dismissed pursuant to summary judgment.

         {¶5} On March 28, 2017, a bench trial commenced in this matter on the remaining causes of action. At trial, the court heard testimony from Appellant, Appellee Matt Thompson and Rob Nixon, an independent contractor who worked with Appellant for Appellees.

         {¶6} Based on the testimony and evidence presented at trial, the court found that while Appellant was an employee of Fence Solutions prior to September, 2015, his status changed to that of an independent contractor on or around September 14, 2015. The court further found that Appellant was an independent contractor when his employment was terminated from Fence Solutions. The court made additional findings that while employed by Fence Solutions, Appellant was paid at least minimum wage and that he received all overtime pay owed to him. The court found that Appellee Matt Thompson did not breach any duty owed to Appellant.

         {¶7} Appellant now appeals, assigning the following errors for review:

         ASSIGNMENTS OF ERROR

         {¶8} "I. THE TRIAL COURT ABUSED ITS DISCRETION, AND OTHERWISE MADE A CLEARLY ERRONEOUS FINDING, BY RULING THAT APPELLANT WAS AN INDEPENDENT CONTRACTOR AND NOT AN EMPLOYEE WHEN APPELLANT SATISFIED MOST OF THE BOSTIC FACTORS AND THE INDUSTRIAL COMMISSION FOUND HE WAS AN EMPLOYEE.

         {¶9} "II. A FURTHER ASSIGNMENT OF ERROR AND ABUSE OF DISCRETION WAS COMMITTED WHEN THE TRIAL COURT HELD THERE WAS NO WORKERS' COMPENSATION RETALIATION DESPITE THE EXISTENCE OF AN AUDIO RECORDING CORROBORATING THIS CLAIM AND APPELLEE THOMPSON TESTIFIED IN HIS DEPOSITION AND OPEN COURT THAT APPELLANT WAS FIRED FOR FILING A WORKERS' COMPENSATION CLAIM.

         {¶10} "III. THE TRIAL COURT FURTHER ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION BY FINDING THAT THE PROMPT PAY ACT WAS NOT VIOLATED WHEN APPELLANT DID NOT RECEIVE HIS FINAL PAYCHECK UNTIL FOUR MONTHS AFTER HE RETAINED A LAWYER.

         {¶11} "IV. A FINAL ERROR AND ABUSE OF DISCRETION WAS COMMITTED WHEN THE TRIAL COURT FOUND THAT THE APPELLANT WAS NOT ENTITLED TO OVERTIME PAY WHEN APPELLEES FAILED TO PAY HIM FOR OVERTIME HOURS WORKED ON TWO SEPARATE OCCASIONS AND WERE AWARE OF THE DISCREPANCY."

         I.

         {¶12} In his First Assignment of Error, Appellant argues that the trial court erred in determining that ...


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