Court of Appeals of Ohio, Fifth District, Fairfield
Appeal from the Court of Common Pleas, Case No. 15 CV 816
Plaintiff-Appellant PATRICK KASSON JACKIE JEWELL REMINGER
Defendant-Appellees D. JOE GRIFFITH DAGGER, JOHNSTON, MILLER
OGILVIE & HAMPSON, LLP
John W. Wise, P. J. Hon. William B. Hoffman, J. Hon. Craig R.
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
OF THE FACTS AND CASE
The relevant facts are as follows:
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
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.
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
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.
Appellant now appeals, assigning the following errors for
"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.
"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'
"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.
"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."
In his First Assignment of Error, Appellant argues that the
trial court erred in determining that ...