[Cite as Reichert v. Lauren Internatl., Ltd. Edgetech, I.G., Inc., 2012-Ohio-4731.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GERHARD REICHERT : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant/ : Hon. Sheila G. Farmer, J.
Cross-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
:
LAUREN INTERNATIONAL, LTD., : Case No. 12AP030019
EDGETECH, I.G., INC. :
:
Defendants-Appellees/ :
Cross-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2009CV101040
JUDGMENT: Affirmed/Reversed in Part &
Remanded
DATE OF JUDGMENT: October 9, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
SCOTT R. AUSTN WILLIAM S. CLINE
7799 Glenmore Drive JUDE B. STREB
Powell, OH 43065 KRISTEN MOORE
Millennium Center-Suite 300
STEPHEN W. FUNK 200 Market Avenue North
222 South Main Street P.O. Box 24213
Akron, OH 44308 Canton, OH 44701-4213
Tuscarawas County, Case No. 12AP030019 2
Farmer, J.
{¶1} On November 16, 1989, appellant, Gerhard Reichert, and his partner
Michael Glover, principals of a company called Edgetech I.G. Ltd., entered into a
Purchase Agreement with 170619 Canada Ltd. and appellee, now known as Lauren
International, Ltd., wherein 170619 Canada Ltd. agreed to purchase Edgetech I.G. Ltd.
and appellee Lauren agreed to purchase the principals' patent and technology rights to
a foam spacer product marketed as "Super Spacer." In exchange, appellant and Mr.
Glover received royalty rights and employment pursuant to an Employment Agreement
with 170619 Canada Ltd., which later became Edgetech I.G. (1989) Ltd. The Purchase
and Employment Agreements were entered into in Ontario, Canada.
{¶2} In 1994, appellee Lauren formed a new wholly-owned subsidiary
corporation in Ohio called Edgetech I.G., Inc., appellee herein. Appellant began
working for appellee Edgetech that same year.
{¶3} A dispute arose between the parties over the calculation of the royalty
payments. On December 15, 2006, appellee Lauren filed an "Application" in Ontario,
Canada, seeking an interpretation of the Purchase Agreement regarding the royalty
payments. The outcome of this Canadian action found appellee Lauren had been
properly calculating the amounts and it did not owe appellant any additional payments.
The Canadian action ended on October 23, 2008.
{¶4} On October 21, 2009, appellant filed a complaint against appellees in the
Court of Common Pleas for Tuscarawas County, Ohio, claiming breach of contract
(Count I), unjust enrichment (Count II), and promissory estoppel (Count III). Appellant
also sought an accounting and production of corporate books and records (Count IV).
Tuscarawas County, Case No. 12AP030019 3
{¶5} On December 17, 2009, appellees filed a motion to dismiss Counts I, II,
and III for lack of subject matter jurisdiction as the counts arose under the parties'
Purchase and Employment Agreements and Ontario would have jurisdiction over both
agreements with exclusive jurisdiction over the Employment Agreement.
{¶6} On April 19, 2010, appellee Edgetech filed a motion for summary
judgment on Count IV as appellant was not a shareholder and therefore had no right to
inspect its books and records.
{¶7} By judgment entry filed September 21, 2010, the trial court dismissed
Count II of the complaint, finding it was governed by the forum selection clause of the
Employment Agreement which was Ontario.
{¶8} On September 27, 2010, appellant filed a motion for leave to amend
Count II of the complaint.
{¶9} On September 30, 2010, appellees filed a motion for summary judgment
on Counts I and III of the complaint. Appellees claimed Count I was barred by Ontario's
two year statute of limitations for breach of contract claims and Counts I and III were
barred by res judicata based upon the Ontario action.
{¶10} By judgment entry filed February 10, 2011, the trial court denied
appellant's motion for leave to amend Count II of the complaint, dismissed Counts I and
III, finding appellant's claims were barred under the doctrine of res judicata, and
dismissed Count IV as to Edgetech, finding appellant did not have any statutory rights to
inspect the books and records of appellee Edgetech.
{¶11} On November 23, 2011, appellee Lauren filed a motion for summary
judgment on Count IV, claiming appellant was seeking to inspect its books and records
Tuscarawas County, Case No. 12AP030019 4
for an improper purpose. By judgment entry filed February 29, 2012, the trial court
granted the motion.
{¶12} Appellant filed an appeal on March 9, 2012 and assigned the following
errors:
I
{¶13} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON
PLAINTIFF'S CLAIM FOR BREACH OF CONTRACT IN COUNT I OF THE
COMPLAINT."
II
{¶14} "THE TRIAL COURT ERRED IN DISMISSING COUNT II OF THE
COMPLAINT BASED UPON A NON-APPLICABLE 1989 EMPLOYMENT
AGREEMENT."
III
{¶15} "THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION TO
AMEND THE COMPLAINT."
IV
{¶16} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON
PLAINTIFF'S PROMISSORY ESTOPPEL CLAIM IN COUNT III OF THE COMPLAINT."
V
{¶17} "THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT
ON COUNT IV OF THE COMPLAINT."
{¶18} Appellees filed a cross-appeal on March 16, 2012 and assigned the
following errors:
Tuscarawas County, Case No. 12AP030019 5
CROSS-ASSIGNMENT OF ERROR I
{¶19} "THE TRIAL COURT ERRED WHEN IT REFUSED TO APPLY THE TWO
YEAR STATUTE OF LIMITATIONS OF THE PROVINCE OF ONTARIO, CANADA,
THE SITUS OF THE EXECUTION AND PERFORMANCE OF THE CONTRACT AND
THE PHYSICAL LOCATION OF THE MAJORITY OF THE CONTRACTING PARTIES,
TO THE BREACH OF CONTRACT CLAIM OF PLAINTIFF WHEN THE EXPRESS
TERMS OF THE CONTRACT SPECIFIED THAT ONTARIO LAW WOULD APPLY
EXCEPT FOR ISSUES RELATING TO ESCROW."
CROSS-ASSIGNMENT OF ERROR II
{¶20} "WHERE AN AGREEMENT FOR THE SALE OF PATENT RIGHTS IS
FUNDAMENTALLY LINKED TO THE AGREEMENT FOR THE EMPLOYMENT OF
THE PATENT RIGHT HOLDER BY THE PURCHASER, AND WHERE THE
AGREEMENTS MUST BE INTERPRETED AND APPLIED TOGETHER TO
DETERMINE THE RIGHTS OF THE PARTIES, AND BOTH AGREEMENTS
EXPRESSLY STATE THAT THE COURTS OF THE PROVINCE OF ONTARIO,
CANADA HAVE JURISDICTION OVER THE RIGHTS OF THE PARTIES, IT IS ERROR
FOR THE TRIAL COURT TO FAIL TO APPLY THE EXCLUSIVE JURISDICTION
PROVISION OF THE EMPLOYMENT AGREEMENT TO THE PURCHASE
AGREEMENT. THE TRIAL COURT THEREFORE ERRED WHEN IT FOUND THAT
COUNTS I AND III OF APPELLANT'S COMPLAINT WERE NOT SUBJECT TO THE
EXCLUSIVE JURISDICTION CLAUSE OF THE EMPLOYMENT AGREEMENT OF
APPELLANT."
{¶21} This matter is now before this court for consideration.
Tuscarawas County, Case No. 12AP030019 6
I, IV
{¶22} Appellant claims the trial court erred in granting summary judgment to
appellees on Counts I and III of the complaint, finding the claims were barred pursuant
to the doctrine of res judicata.
{¶23} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
{¶24} "Civ.R. 56(C) provides that before summary judgment may be granted, it
must be determined that (1) no genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it
appears from the evidence that reasonable minds can come to but one conclusion, and
viewing such evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is made. State
ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,
364 N.E.2d 267, 274."
{¶25} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30
Ohio St.3d 35.
{¶26} "The doctrine of res judicata involves both claim preclusion (historically
called estoppel by judgment in Ohio) and issue preclusion (traditionally known as
collateral estoppel)." Grava v. Parkman Twp. (1995) 73 Ohio St.3d 379, 381. Claim
Tuscarawas County, Case No. 12AP030019 7
preclusion "prevents a party from litigating a cause of action after a prior court has
rendered a final judgment on the merits of that cause as to that party." Krahn v. Kinney
(1989), 43 Ohio St.3d 103, 107, citing Norwood v. McDonald (1943), 142 Ohio St. 299,
paragraph one of the syllabus. Issue preclusion "precludes the relitigation of an issue
that has been 'actually and necessarily litigated and determined in a prior action.' "
Krahn, at 107, quoting Goodson v. McDonough Power Equipment, Inc. (1983), 2 Ohio
St.3d 193, 195.
{¶27} It is appellees' position that the Ontario decision estopped appellant from
arguing his claims in Counts I and III of his complaint. Count I of appellant's complaint
was for breach of contract wherein he alleged he was not paid the full amount due
under the Purchase Agreement. Count III was for promissory estoppel wherein
appellant alleged he had made "concessions" to purchase payments due and owing
during the course of some fourteen years and appellees' president, Kevin Gray,
promised to make up the concessions in the future. Appellant argues he relied on the
promises and is now due monies that were due him as a result of the Ontario decision.
{¶28} Appellees argue their initiation of the Ontario action required appellant to
defend the claims or be forever barred. Upon review of the October 22, 2007 Ontario
Superior Court of Justice decision, we find Justice Smith delineated the issues as
follows:
{¶29} "The Court must therefore interpret the meaning of s. 2.02 (b) of the
Agreement whereby Lauren acquired the assets of Edgetech I.G. Ltd. ('Edgetech') and
the Principal Patent Rights from Michael Glover and Gerhard Reichert in 1989, and
decide the following issues:
Tuscarawas County, Case No. 12AP030019 8
{¶30} "(a) Does Lauren's obligation to make the royalty payment of 1% of the
gross monthly sales of 'Super Spacer' Products in a jurisdiction terminate when the
patent for 'Super Spacer' Products expires in that jurisdiction?
{¶31} "(b) Is Lauren required to continue to make royalty payments to Reichert,
based on the gross monthly sales of 'Super Spacer' Products in all jurisdictions
worldwide, as long as there remains at least one valid Schedule H patent in any
jurisdiction in the world?
{¶32} "(c) Is Lauren required to continue to make the royalty payments to
Reichert until the expiry of any patent registered for an improvement or extension to any
of the Schedule H patents for 'Super Spacer' Products developed and registered after
the sale had been completed and while Reichert was employed by Edgetech (1989)?"
{¶33} The claims in Counts I and III were not the subject matter of the Ontario
action. The Ontario Superior Court of Justice order dated October 22, 2007 was
restricted to the expiration of the patents and the royalty payments owed to appellant:
{¶34} "1. THIS COURT ORDERS that Lauren is entitled to stop including sales
of insulating foam spacers for insulated glazing units, also known as 'Super Spacer'
Products, in the United States to calculate the royalty payments due the Reichert
pursuant to Section 2.02(b) of the Agreement of Purchase and Sale dated December 1,
1989 (the 'Agreement'), as of September 22, 2006, the date upon which the patent for
'Super Spacer' Products (U.S. Patent 4,831,799 & U.S. Patent 5,007,217) expired in the
United States.
{¶35} "2. THIS COURT FURTHER ORDERS that the patents developed by
Reichert, while he was an employee of either Edgetech I.G. Ltd. or Edgetech I.G. (1989)
Tuscarawas County, Case No. 12AP030019 9
Ltd., do not constitute extension patents within the meaning of section 2.02(b) of the
Agreement and does not extend the time period that Lauren is required to make
monthly royalty payments to Reichert.
{¶36} "3. THIS COURT FURTHER ORDERS that Lauren is not required to pay
Reichert an aggregate amount equal to 1% (formerly 2%) of Lauren's Monthly Gross
Sales of 'Super Spacer' Products in those jurisdictions where the patent rights, which
were included in Schedule H of the Agreement and defined as the Principals' Patent
Rights, have expired."
{¶37} It is true, as appellees attest, in appellant's "Factum" and affidavit
prepared for the Ontario action, appellant alluded to the "concessions" made in
exchange for future royalty payments from increased sales. This was in support of
appellant's view that both he and appellee Lauren expected the royalties to be ongoing
regardless of the expiration of the patent rights, thereby producing extrinsic evidence to
bolster his interpretation of the royalty payment provisions of the Purchase Agreement.
No claim was made that funds were shorted as a result of the concessions.
{¶38} Given the wording and arguments within appellant's Factum and affidavit,
it was clear to appellant that the "concessions" were not compensable at the time of the
filings, but were proof of the ongoing right to royalties regardless of the length of the
patent rights. Therefore, it is appellant's position that his claims did not exist until the
decision by the Ontario court that cut short the royalties received on sales. We note
appellant filed the complaint sub judice within two years of the Ontario order.
{¶39} Given the totality of the evidence, the wording of appellees' Application to
the Ontario Superior Court of Justice (attached to appellant's October 15, 2010
Tuscarawas County, Case No. 12AP030019 10
memorandum in opposition to motion for summary judgment as Exhibit A) suggests the
sole issue was the right of appellees to terminate royalty payments under Section 2.02
of the Purchase Agreement:
{¶40} "e. In accordance with Section 2.02(b) and Section 2.04 of the Agreement,
upon the expiry of the patents comprising the Principals' Patent Rights in the
jurisdictions as noted in subparagraph (d) above, Lauren is no longer obligated to
include, in the calculation of 1% of Monthly Gross Sales by Lauren of Super Spacer
Products, sales of Super Spacer Products in those jurisdictions.
{¶41} "f. Reichert has objected to the reduction of the monthly amount he is to
receive from the Applicants on the basis that the Applicant's interpretation of Section
2.02(b). Reichert claims entitlement to payment of 1% of Monthly Gross Sales by the
Applicant of all 'Super Spacer' Products until all of the patents comprising of the
Principals' Patent Rights have expired.
{¶42} "g. There is a dispute over the proper interpretation of Section 2.02(b) of
the Agreement."
{¶43} Based upon these pleadings and their interpretation, we find neither
collateral estoppel nor res judicata bars the litigation of Count I and III of appellant's
complaint. Counts I and III are re-instated.
{¶44} Assignments of Error I and IV are granted.
II
{¶45} Appellant claims the trial court erred in granting appellees' motion to
dismiss Count II, finding the Ontario court had exclusive jurisdiction over any
Employment Agreement claims based upon the forum selection clause therein.
Tuscarawas County, Case No. 12AP030019 11
{¶46} Appellees filed a motion to dismiss Count II pursuant to Civ.R. 12(B)(1),
lack of subject matter jurisdiction. The standard of review for a dismissal for want of
subject matter jurisdiction pursuant to Civ.R. 12(B)(1) is whether any cause of action
cognizable by the forum has been raised in the complaint. Prosen v. Dimora (1992), 79
Ohio App.3d 120; State ex rel. Bush v. Spurlock (1989), 42 Ohio St.3d 77. This
determination involves a question of law that we will review de novo. Shockey v. Fouty
(1995), 106 Ohio App.3d 420. Under a de novo analysis, we must accept all factual
allegations of the complaint as true, and all reasonable inferences must be drawn in
favor of the nonmoving party. Byrd v. Faber (1991), 57 Ohio St.3d 56. In determining
whether the plaintiff has alleged a cause of action sufficient to withstand a Civ.R.
12(B)(1) motion to dismiss, a court is not confined to the allegations of the complaint
and may consider material pertinent to the inquiry without converting it into a motion for
summary judgment. Southgate Dev. Corp. v. Columbia Gas Transm. Corp. (1976), 48
Ohio St.2d 211, paragraph one of the syllabus.
{¶47} Appellees' December 17, 2009 motion to dismiss argued Section 1.04 of
the Employment Agreement (attached to appellee's motion as Exhibit 2) vests exclusive
jurisdiction in the Ontario courts:
{¶48} "Section 1.04 Laws of Ontario
{¶49} "This Agreement shall be governed by and construed in accordance with
the laws in force in the Province of Ontario and shall be treated in all respects as an
Ontario contract. The parties submit to the jurisdiction of the Courts of Ontario with
respect to any dispute, claim or other matter arising under this Agreement and the
Tuscarawas County, Case No. 12AP030019 12
Courts of Ontario shall have exclusive jurisdiction with respect to any such dispute,
claim or other matter."
{¶50} Appellant argues the 1989 Employment Agreement signed by 170619
Canada Ltd., which later became Edgetech I.G. (1989) Ltd., governed his employment
in Canada, but not in the United States. Appellant further argues the trial court erred in
concluding his present employer, appellee Edgetech, is closely related to the original
obligator, 170619 Canada Ltd./Edgetech I.G. (1989) Ltd, as to make the provisions of
the Employment Agreement enforceable.
{¶51} Count II of appellant's complaint is a claim for unjust enrichment. To
recover under a theory of unjust enrichment, the complainant must prove: 1) he/she
conferred a benefit on the defendant; 2) the defendant had knowledge of the benefit;
and 3) the defendant retained the benefit under circumstances where it would be unjust
for him/her to retain that benefit without payment. Hambleton v. R.G. Barry Corp.
(1984), 12 Ohio St.3d 179.
{¶52} Appellant's unjust enrichment claim was based upon the fact that he took
annual salaries far below market value for his services for the years 1989 to 2006 as an
employee of appellee Edgetech and he made the concessions on salary based upon his
Purchase Agreement with appellees of 1% of the profits.
{¶53} The unjust enrichment claim arises out of the Employment Agreement and
is subject to the provisions of the agreement if it is enforceable. " '[A]rising under'
means 'stemming from' or 'originating in'. See Black's Law Dictionary 102 (7th
ed.1999)." Harris v. Allstate Insurance Company (C.A.10, 2002), 300 F.3d 1183, 1190.
Tuscarawas County, Case No. 12AP030019 13
{¶54} We note in Article 2 of the Employment Agreement under Section 2.02,
Remuneration, appellant was to be paid "dividends declared on shares of Lauren***held
by or on behalf of the Executive***and of salary paid to the Executive***provided that, in
no event, will the total remuneration payable to the executive hereunder exceed
$40,000." The Employment Agreement, signed by appellant and 170619 Canada
Ltd./Edgetech I.G. (1989) Ltd., is an attachment to the Purchase Agreement signed by
appellant, appellee Lauren, Edgetech G.I. Ltd., 170619 Canada Ltd., and Michael
Glover. The Purchase Agreement includes Section 6.06, Offer of Employment, and
Schedule M, which lists appellant as "Vice President" for a remuneration of $20,000.
We note it does not state which company he is a vice president of. The "Buyer" who
agreed to offer employment in Section 6.06 is 170619 Canada Ltd./Edgetech I.G.
(1989) Ltd. as set forth in the Purchase Agreement.
{¶55} Despite the now claimed non-existence of 170619 Canada Ltd./Edgetech
I.G. (1989) Ltd., we conclude the Employment Agreement is still enforceable and a
claim for unjust enrichment under the Employment Agreement is controlled by the forum
selection clause, Ontario.
{¶56} The trial court did not err in granting appellees' motion to dismiss Count II
of the complaint.
{¶57} Assignment of Error II is denied.
III
{¶58} Appellant claims the trial court erred in denying his motion to amend the
complaint as to Count II.
Tuscarawas County, Case No. 12AP030019 14
{¶59} Civ.R. 15(A) governs amendments and states the following in pertinent
part:
{¶60} "A party may amend his pleading once as a matter of course at any time
before a responsive pleading is served or, if the pleading is one to which no responsive
pleading is permitted and the action has not been placed upon the trial calendar, he
may so amend it at any time within twenty-eight days after it is served. Otherwise a
party may amend his pleading only by leave of court or by written consent of the
adverse party. Leave of court shall be freely given when justice so requires."
{¶61} The decision whether to allow a party leave to amend a complaint lies
within the trial court's sound discretion. National Bank of Fulton County v. Haupricht
Bros. (1988), 55 Ohio App.3d 249. In order to find an abuse of discretion, we must
determine the trial court's decision was unreasonable, arbitrary or unconscionable and
not merely an error of law or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d
217.
{¶62} In its judgment entry filed February 10, 2011, the trial court denied
appellant leave to amend his complaint, finding the following:
{¶63} "The Court FINDS that permitting Plaintiff to amend his Complaint in
response to the Court's Judgment Entry granting Defendants' Motion to Dismiss as to
Count II of Plaintiff's Complaint would result in undue prejudice to Defendants."
{¶64} Appellant filed his complaint on October 21, 2009. On December 17,
2009, appellees filed their motion to dismiss for lack of subject matter jurisdiction as the
counts in the complaint were subject to the exclusive jurisdiction of Ontario. More than
nine months later, the trial court granted the motion to dismiss as to Count II. See,
Tuscarawas County, Case No. 12AP030019 15
Judgment Entry filed September 21, 2010. Appellant filed his motion for leave to amend
six days later, seeking to clarify Count II by distinguishing between two distinct
Edgetech entities, Edgetech I.G. (1989) Ltd. and appellee Edgetech. Appellant argues
had he been able to do so, it would have been clear that the allegations in Count II did
not relate to his employment with the Canadian Edgetech.
{¶65} In reading the trial court's September 21, 2010 judgment entry wherein it
dismissed Count II, it is clear the trial court understood the two separate Edgetech
entities and was aware that appellant's claims pertained to his employment with
appellee Edgetech in Ohio.
{¶66} Because appellant waited over nine months to ask for leave to amend
after appellees raised the issue of subject matter jurisdiction, we do not find the trial
court acted unreasonably, arbitrarily or unconscionably in denying appellant's motion for
leave to amend.
{¶67} Assignment of Error III is denied.
V
{¶68} Appellant claims the trial court erred in dismissing Count IV of his
complaint.
{¶69} In its judgment entry filed September 21, 2010, the trial court stated the
following in dismissing Count IV:
{¶70} "The Court FINDS that Plaintiff is not a shareholder of Edgetech and does
not have a statutory right to inspect the records of Edgetech.
{¶71} "The Court FINDS that based upon its ruling regarding Defendants' Motion
for Summary Judgment on Counts I and III of Plaintiff's Complaint, Plaintiff is not entitled
Tuscarawas County, Case No. 12AP030019 16
to an accounting from Edgetech for the sale of Super Spacer products because the
Ontario Superior Court of Justice already determined that Lauren does not owe Reichert
for the sale of Super Spacer products.
{¶72} "The Court further FINDS that no genuine issues of material fact remain
regarding whether Plaintiff has a statutory right to inspect the records of Edgetech or is
entitled to an accounting from Edgetech of all sales of Super Spacer products.
{¶73} "The Court FINDS, therefore, that Defendant Edgetech I.G., Inc.'s Motion
for Summary Judgment on Count IV of Plaintiff's Complaint should be granted."
{¶74} Based upon our ruling on Counts I and III, Count IV is re-instated.
{¶75} Assignment of Error V is granted.
CROSS-ASSIGNMENT OF ERROR I
{¶76} Appellees claim appellant's action is barred by the two year statute of
limitations for a suit on contract in Ontario.
{¶77} In Assignments of Error I and IV, we found the actual claims did not arise
until there was a definitive ruling by the Ontario courts on the meaning of Section 2.02
of the Purchase Agreement. Further, the trial court found the applicable statute of
limitations should be Ohio's fifteen years (R.C. 2305.06). The Purchase Agreement
included a very limited governing law section:
{¶78} "Section 1.06 Governing Law. Save and except with respect to matters of
Ohio law which may apply to the terms of the escrow described in Section 2.02 of this
Agreement, this Agreement shall be governed by and construed in accordance with the
laws in force in the Province of Ontario and shall be treated in all respects as an Ontario
contract. The parties submit to the jurisdiction of the courts of Ontario with respect to
Tuscarawas County, Case No. 12AP030019 17
any dispute, claim or other matter arising under this Agreement and the courts of
Ontario shall have non-exclusive jurisdiction with respect to any such dispute, claim or
other matter."
{¶79} Upon review, we fail to find any error in denying appellees' statute of
limitations issue.
{¶80} Cross-Assignment of Error I is denied.
CROSS-ASSIGNMENT OF ERROR II
{¶81} Appellees claim the trial court erred in not granting their motion to dismiss
Counts I and III under the exclusive jurisdiction provision of the Employment
Agreement.
{¶82} As we noted in Cross-Assignment of Error I, the governing law and
jurisdictional provision of the Purchase Agreement is much more limited and less
restrictive than the provision in the Employment Agreement, Section 1.04, Laws of
Ontario, cited supra under Assignment of Error II.
{¶83} Upon review, we find these more than subtle differences to be persuasive,
and we concur with the trial court's analysis.
{¶84} Cross-Assignment of Error II is denied.
Tuscarawas County, Case No. 12AP030019 18
{¶85} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio
is hereby affirmed in part and reversed in part.
By Farmer, J.
Hoffman, P.J. and
Edwards, J. concur.
_s / Sheila G. Farmer______________
_s / William B. Hoffman____________
_s / Julie A. Edwards_______________
JUDGES
SGF/sg 831
[Cite as Reichert v. Lauren Internatl., Ltd. Edgetech, I.G., Inc., 2012-Ohio-4731.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GERHARD REICHERT :
:
Plaintiff-Appellant/ :
Cross-Appellee :
:
-vs- : JUDGMENT ENTRY
:
LAUREN INTERNATIONAL, LTD., :
EDGETECH, I.G., INC. :
:
Defendants-Appellees/ : CASE NO. 12AP030019
Cross-Appellants
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Tuscarawas County, Ohio is affirmed in part
and reversed in part, and the matter is remanded to said court for further proceedings
consistent with this opinion. Costs to be divided equally between appellant, appellee
Lauren International, Ltd., and appellee Edgetech, I.G., Inc.
s / Sheila G. Farmer______________
_s / William B. Hoffman____________
_s / Julie A. Edwards_______________
JUDGES