Becker v. Direct Energy, LP

[Cite as Becker v. Direct Energy, LP, 2018-Ohio-4134.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STEPHEN B. BECKER :
:
Plaintiff-Appellee : Appellate Case No. 27957
:
v. : Trial Court Case No. 2016-CV-4148
:
DIRECT ENERGY, LP : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 12th day of October, 2018.

...........

JEFFREY M. SILVERSTEIN, Atty. Reg. No. 0016948 and RANDOLPH H. FREKING,
Atty. Reg. No. 0009158, 600 Vine Street, 9th Floor, Cincinnati, Ohio 45202
Attorneys for Plaintiff-Appellee

ANGELIQUE PAUL NEWCOMB, Atty. Reg. No. 0068094 and CHAD J. KALDOR, Atty.
Reg. No. 0079957, 21 East State Street, 16th Floor, Columbus, Ohio 43215
Attorneys for Defendant-Appellant

.............

WELBAUM, P.J.
 -2-

{¶ 1} In this case, Defendant-Appellant Direct Energy, L.P. (“DE”) appeals from a

judgment in favor of Plaintiff-Appellee, Stephen Becker, on claims for breach of an

employment agreement and breach of the duty of good faith and fair dealing. After a jury

trial, the jury awarded Becker $655,733.44 in damages and rejected Becker’s claim for

defamation.

{¶ 2} In support of its appeal, DE contends that the trial court erred in overruling

its motion for summary judgment and in denying its motion for directed verdict on Becker’s

claims for breach of contract and breach of the duty of good faith and fair dealing.

According to DE, the trial court also erred in instructing the jury on the breach of contract

claim. Finally, DE contends that the trial court abused its discretion in finding that DE

acted in bad faith and awarding attorney fees to Becker.

{¶ 3} We conclude that the alleged error in denial of DE’s motion for summary

judgment was moot or harmless, due to the judgment in Becker’s favor, and the fact that

the issues involved were not pure questions of law. Furthermore, the trial court did not

err in denying DE’s motion for directed verdict, as substantial competent evidence existed

to support Becker’s claims, and reasonable minds might reach different conclusions

based on the evidence presented.

{¶ 4} The trial court also did not err in instructing the jury on Becker’s claim for

breach of contract. DE waived most of the alleged errors by failing to object, and there

was no error, let alone plain error, in the instructions that were given. Finally, the trial

court did not abuse its discretion by awarding attorney fees to Becker, given the jury’s

finding that DE acted in bad faith. Accordingly, the judgment of the trial court will be
 -3-

affirmed.

I. Facts and Course of Proceedings

{¶ 5} Construing the facts in favor of Becker,1 the evidence was as follows. In

1972, Stephen Becker began his career as an installer for a heating and air conditioning

company. Becker then went to work for Airtron as a sales engineer in 1982. He was

later promoted to vice president of Airtron’s Indianapolis division, and eventually, with a

group of about 26 managers, purchased stock and formed an employee stock ownership

plan.

{¶ 6} In May 1997, Becker and the other five remaining owners sold Airtron to

GroupMAC. Becker then had a one-year employment agreement, but ended up staying

until November 1998, at which time he retired. From 1998 to 2004, Becker and others

ran a nonprofit organization called Character Council of Indiana, which did character

training and consulting work for businesses. Becker worked at Character Council as a

volunteer.

{¶ 7} In 2004, Eric Salzer recruited Becker to work as a senior vice president of

consumer/services operations for Residential Services Group (“RSG”). Salzer had

worked with Becker at Airtron and was the president and CEO of RSG at the time.2

1This is appropriate because DE has not asserted a manifest weight challenge, which
would require weighing of evidence and determinations of credibility. Buckeye
Retirement Co., LLC v. Busch, 2017-Ohio-4009, 82 N.E.3d 66, ¶ 40 (2d Dist.).
2 Centrica U.S. Holdings was the parent company for RSG, which was a holding company
for Airtron and other retail services. In 2004, after Becker was hired, DE took over or
purchased RSG. While a number of different entities were involved in operating the
business in which Becker was employed, this fact is essentially irrelevant, and the parties
have used the names “Airtron” and “DE” interchangeably.
 -4-

Salzer recruited Becker because Becker had a track record of outstanding performance

when he worked at Airtron. Becker was placed in charge of a number of divisions,

including the Airtron Indianapolis division.

{¶ 8} Becker was classified as an L-4, and such employees sign employment

agreements. On September 24, 2004, Becker signed an employment agreement

prepared by DE’s legal department. Various provisions in the agreement covered

matters like non-competition, intellectual property, bonuses, salary, benefits, and so on.

Pertinent to the litigation was Article IX, which addressed termination.

{¶ 9} This article provided in Section 9.2, that if the company terminated Becker

without cause, he would be entitled to 24 month’s salary, plus any pro-rata accrued bonus

and vacation pay to the date of termination. In addition, Becker was entitled to

reimbursement for up to 18 months of COBRA premiums, and for additional premiums

beyond that, if COBRA coverage ceased before the end of the 24-month salary

continuation period. Under Section 9.1, Becker was allowed to terminate his

employment and the agreement by providing three months’ notice; in this situation, the

company could choose to specify an earlier termination date, but would be liable for the

outstanding portion of three months’ salary, benefits, vacation, and perquisites.

{¶ 10} Section 9.4 involved termination by the company with cause and provided,

in relevant part, as follows:

Notwithstanding anything contained in this Agreement, this

Agreement and the employment of the Executive may be terminated by the

Company for “Cause” by giving notice to the Executive. In such case, the

Company shall have no further obligation to the Executive except for
 -5-

payment of his annual base salary and unused vacation due and owing up

to the date of termination. For purposes of this agreement, “Cause” shall

mean that the Company, acting in good faith based upon the information

then known to the Company, determines that the Executive:

***

(b) has engaged in acts of fraud, material dishonesty, or other acts

of willful misconduct in the course of his duties hereunder * * *.

Plaintiff’s Ex. 1, pp. 8-9.

{¶ 11} During the entire time that Becker worked for Airtron, both between 1982

and 1998, and between 2004 and May 3, 2016, Becker was never disciplined in any way.

His annual reviews were never anything less than excellent, and he had more outstanding

reviews than excellent reviews. Becker’s division was also one of the most profitable,

and Becker was highly thought of within the Airtron business. From 2004 to 2016, safety

consciousness went up tremendously at Airtron and the company environment became

a “safety culture.”

{¶ 12} As a division manager, Becker was required to do a minimum number of

random stop inspections, which were safety inspections. There was no written policy

regarding the inspections, and Becker was the one who decided which job sites and

employees would be inspected. The inspections were a surprise, because employees

were not informed beforehand and were not supposed to know that Becker was coming.

These inspections were intended to be positive learning experiences rather than an

attempt to catch employees doing something wrong.

{¶ 13} On March 17, 2016, Becker happened to be in a particular subdivision,
 -6-

spotted an Airtron truck, and decided to do a stop inspection. The employees he

inspected that day were Brad Eads and Max Manifold. Before Becker got to the house

where the truck was parked, he saw Eads “setting” an air conditioner, and noticed it was

not level. When he pointed this out, Eads was resistant, but eventually acknowledged

that it was not level. As Eads was finishing up the high voltage wiring, Becker also asked

if Eads had done a lockout/tagout, and Eads said he had not.

{¶ 14} A lockout/tagout was a required procedure in all instances to prevent

employees from receiving electric shocks that can be fatal. Failing to do a lockout/tagout

was a serious safety violation. Eads was not receptive to Becker’s comments and did

not feel the lockout/tagout was needed because he was close to the electrical panel.

Becker considered the lockout situation dangerous.

{¶ 15} While at the site, Becker also noticed that the Airtron truck was parked the

wrong way on the street, that cones had not been set out, and that Eads was not wearing

a hard hat. All these items were safety issues. Finally, there was a serious quality issue

with Eads’s refrigerant gauges. After the inspection, Becker noted what he found on the

company’s online system, but he did not discipline Eads. Protocol dictated that Eads’s

supervisor, Matt Eskew, would take care of discipline, and Becker spoke to Eskew about

what he had found. Eskew indicated he would talk to Eads.

{¶ 16} Previously, Eads had been suspended for three days in 2015 for a safety

violation involving pit-boards, which are placed in attics to ensure that individuals do not

fall through ceilings into a home. DE had a progressive discipline system, as follows:

verbal warning; written warning, second written warning, suspension, and then

termination.
 -7-

{¶ 17} Eskew did not administer any discipline to Eads. On March 31, 2016,

Becker had an impromptu discussion with Eskew about whether Eads was teachable.

He was concerned that Eskew had not handled the situation properly. Becker decided

to do another stop inspection and headed to a worksite in Atlanta, Indiana, where Eads

was supposed to be working. Becker was tight on time because he did not realize how

far north the jobsite was. Becker had a 3:00 p.m. meeting in Indianapolis with some

senior leaders and a builder, and being on time was important because Becker had called

the meeting.

{¶ 18} When Becker arrived at the jobsite, the truck was again parked in the wrong

direction, and no cones were out. Eads was inside a house, and Manifold was standing

by a temporary electric pole. Neither employee wore a hard hat. Becker was

disappointed and exasperated to see the same safety violations. He was also bothered

that he was going to be late for his meeting.

{¶ 19} Manifold told Becker that they had just arrived and were not sure they had

power at the site. Manifold then told Eads that Becker was there. When Eads came

out of the house, Becker told Eads that he was “going to have your ass right here, right

now.” Trial Transcript (“Tr.”), p. 677. Becker told Manifold to go inside the house. After

going in, Manifold heard Becker yelling. He saw Becker poke Eads in the chest, and

Eads take a step back. Manifold thought that Becker poked Eads one more time, but he

could not see if contact was made. Eads was quite a bit heavier and taller than Becker.

{¶ 20} Becker indicated that he raised his voice at Eads, was unprofessional, and

used profanity. He stated that residential construction was a very rough environment

and profanity was part of the culture. He admitted losing his “cool” and stated that he
 -8-

did touch Eads twice, with his finger. Becker denied pushing Eads. He did tell Eads

that he was concerned that Eads was not teachable, that he had to comply with safety

issues, and that if he wanted to quit, he should quit. Ultimately, Becker apologized to

Eads for his unprofessionalism and profanity. The last thing he said was that either Eads

had to be on the team or not.

{¶ 21} Becker then left and went to his meeting. After the meeting, he told some

fellow employees that the inspection did not go well and that he that he had been the

most upset he had been in a long time.

{¶ 22} Manifold testified that Eads never told him that he was harmed in any way.

On the way back to the office, Eads spent most of the time talking to his wife, who was in

human resources (HR) with a different company. Eads was upset and said he was going

to get fired. Eads knew they had committed safety violations on March 17, and that

particular incident was bad because it involved a lockout/tagout, which created a danger

to employees.

{¶ 23} The next day, Eads filled out a written complaint against Becker and gave

it to the division’s safety manager, Mandi Larabee-Piper. Eads also made a complaint

over a company hotline. According to Eads’s written statement, Becker had poked him

in the chest four or five times, had yelled at him, had used profanity, had said they never

should have hired Eads, had said that Eads should quit, and had said that he (Becker)

would be “gunning” for Eads.3 Larabee-Piper showed the statement to Becker, and he

admitted losing it on the job site. Becker told Larrabee-Piper that she should do what

3 DE did not present testimony from Eads; instead, DE’s employee relations manager,
Kirsten McGarry, read Eads’s statement at trial.
 -9-

she needed to do, and to call his boss, Greg Faris.

{¶ 24} Becker testified that he was surprised that Eads had complained and that

some parts of Eads’s statement were true and other parts were false. Becker said he

did not feel he had harassed Eads, but was trying to establish accountability for Eads’s

own good. He also testified that he told the HR investigator that there was no excuse for

his own conduct, and still felt that way.

{¶ 25} Among other employment policies, DE had nondiscrimination, anti-

harassment, and workplace violence prevention policies. Harassment included “any

verbal or physical conduct designed or intended to disturb, threaten, intimidate, or coerce

an employee, co-worker or any person working on behalf of DE.” Plaintiff’s Ex. 8, p. 1.

In addition, the workplace violence prevention policy defined “violence” as: “the

threatened, attempted or actual conduct of a person that causes or is likely to cause

physical injury. This may include but is not limited to causing physical harm, threatening

behavior, intimidation, coercion, abusive statements, direct or indirect threats/abuse –

verbal or written, harassment, robbery, interpersonal employee conflicts,

customer/employee conflicts, and/or violence that affect the workplace.” Plaintiff’s Ex.

10, p. 1.

{¶ 26} Eads’s complaint was investigated by Kirsten McGarry, who had been with

DE since 2010. During the investigation, McGarry interviewed Eads, Manifold, Becker,

Eskew, and Larrabee-Piper. She also contacted Lisa Seeger, who had served as HR

support for Airtron for many years. McGarry often consulted with Seeger, who had more

knowledge about company practices, how Airtron applied its rules, and how Airtron had

disciplined people in the past. Due to Seeger’s background in Airtron’s particular
 -10-

business, McGarry felt it was important to solicit Seeger’s opinion.

{¶ 27} Even after hearing that Becker had pushed Eads, Seeger recommended

that Becker be given a written reprimand. After reviewing all the information, McGarry

was also leaning toward a written reprimand or warning (the second step in the discipline

process), and informed her supervisor, Johnathan Phillips, of that fact. Her

recommendation was based on the level of the offense, Becker’s long tenure at the

company, and the fact that she was not aware of any prior discipline. After forming her

initial basis for this recommendation, the only new fact that McGarry learned was that

Becker’s latest performance review was an “exceeds” expectations.

{¶ 28} Subsequently, two conference calls occurred concerning the investigation.

The first call involved: McGarry; Nolan Gardner, an HR director; Scott Boose, a DE senior

vice president; Greg Faris (who had replaced Eric Salzer); Zandra (Koeppel) Magarino,

an HR vice president, and Manu Asthana (the most senior person in the company). No

decision was made during this call, and McGarry was asked to follow up on specific areas.

However, the only thing McGarry did after that was to ask Becker if there were any factors

that would have explained his behavior. Becker mentioned the lack of “margin” in his life

(meaning he was over-committed), and that he had some health concerns; however, he

stressed that he was not offering those facts as an excuse.

{¶ 29} According to McGarry, she was asked for a copy of Becker’s employment

agreement at some point in the process. She could not recall if this was before or after

the first conference call, nor could she recall who had requested it, other than that it was

someone superior to her in the organization. However, McGarry did recall forwarding a

copy of the agreement to DE’s legal counsel, Sidney Watts, who was not involved in the
 -11-

first conference call. Watts was part of the second conference call. During the second

conference call, Manu Asthana decided to terminate Becker for willful misconduct.

{¶ 30} Becker was informed of his termination on May 4, 2016. However, DE

asked him to stay until May 25, 2016, to assist DE with the transition. The day before

the termination meeting, McGarry distributed a script for Becker’s firing that had been

prepared by her manager, Phillips. Among other things, the script stated that “If Steve

[Becker] attempts to retire during the meeting tomorrow, we cannot accept it.” Tr. at p.

272, discussing Ex. 21. McGarry indicated that DE was like other companies that

allowed people to retire or resign at any time or for any reason; she said she did not recall

why DE could not have accepted a retirement. DE also put out a statement indicating

that Becker was “passing the torch” to another employee, which was not true; instead, he

was terminated.

{¶ 31} On August 10, 2016, Becker filed this action against DE, asserting claims

for breach of contract, intentional misrepresentation, breach of the duty of good faith and

fair dealing, and unjust enrichment. Becker then filed an amended complaint on April

25, 2017, adding a claim for defamation. On May 30, 2017, DE filed a motion for

summary judgment, which the trial court granted in part and denied in part in late July

2017. Specifically, Becker had conceded that summary judgment was appropriate on

the unjust enrichment claim, and the court granted summary judgment on the claim for

intentional misrepresentation. However, the court concluded that genuine issues of

material fact existed concerning the claims for breach of contract, breach of the duty of

good faith and fair dealing, and defamation.

{¶ 32} Following a jury trial, the jury found in Becker’s favor on his claims for breach
 -12-

of contract and breach of the duty of good faith and fair dealing, and in DE’s favor on the

defamation claim. In answers to special interrogatories, the jury also found that DE had

breached its obligations by terminating Becker without cause, and that DE had acted in

bad faith. As damages, the jury awarded Becker $655,733.44. The trial court later

considered Becker’s motion for attorney fees and costs. The court awarded him

$43,476.02 in prejudgment interest from May 26, 2016 through March 16, 2018;

$217,639.60 for attorney fees, assessed as costs, with interest of $1,111.45 from January

31, 2018 through March 16, 2018; additional post-judgment interest as provided by Ohio

law through the date of payment; and the costs of the action. DE timely appealed from

the judgment of the trial court and raised four assignments of error.

II. Did the Trial Court Err in Denying Summary Judgment to DE?

{¶ 33} DE’s First Assignment of Error states that:

The Trial Court Erred in Denying Appellant’s Summary Judgment

Motion on Appellee’s Claims for Breach of Contract and Breach of the Duty

of Good Faith and Fair Dealing.

{¶ 34} Under this assignment of error, DE contends that we may review the trial

court’s denial of its motion for summary judgment based on a pure issue of law.

According to DE, such a pure issue of law exists because Becker failed to comply with

his obligations under the contract, which prevented him from establishing an essential

element of his breach of contract claim. DE further argues that the trial court erred when

it found that the contract was ambiguous.

{¶ 35} Under well-established law, any errors a trial court makes in denying
 -13-

summary judgment motions are harmless or moot if a later trial on the same issues

demonstrates that genuine issues of material fact existed to support a judgment in favor

of the party that opposed the summary judgment motion. Continental Ins. Co. v.

Whittington, 71 Ohio St.3d 150, 642 N.E.2d 615 (1994), syllabus. Whittington involved

a declaratory judgment action brought by an insurer to determine coverage for an

automobile accident. Id. at 151. After the insurer’s motion for summary judgment was

denied, the jury found that coverage was available for the party claiming to be an insured.

Id. at 153-154.

{¶ 36} On appeal, the insurer claimed that the trial court erred in denying its motion

for summary judgment. However, the Supreme Court of Ohio explained that even if the

record at the time of the summary judgment motion did not reflect genuine issues of

material fact, the evidence at trial showed genuine issues of material fact, and the facts

determined by the jury showed that the insurer was clearly liable. Id. at 155-156. The

court then commented that:

Under these circumstances, it would seem incongruous to now say that the

trial court committed reversible error in denying Continental's motion. Any

error in the denial of the motion was rendered moot or harmless since a full

and complete development of the facts at trial (as opposed to the limited

factual evidence elicited upon discovery) showed that appellants were

entitled to judgment. In this regard, substantial justice would clearly not be

served by setting aside the jury's findings and the final judgment of the trial

court.

Whittington at 156-157. Accord Arnett v. Bardonaro, 2d Dist. Montgomery No. 25371,
 -14-

2013-Ohio-1065, ¶ 30; Isom v. Dayton Power & Light Co., 2d Dist. Montgomery No.

23911, 2010-Ohio-4756, ¶ 23.

{¶ 37} In reaching this holding, the Supreme Court of Ohio distinguished a prior

case, which had allowed such review, by noting that the case involved a “pure question

of law.” Whittington at 158, discussing Balson v. Dodds, 62 Ohio St.2d 287, 405 N.E.2d

293 (1980). Thus, where only a pure issue of law is involved, a denial of summary

judgment may be considered.

{¶ 38} The elements of a breach of contract claim are “the existence of a contract,

performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff.”

Doner v. Snapp, 98 Ohio App.3d 597, 600, 649 N.E.2d 42 (2d Dist.1994). However, as

Becker has noted, “a breach of one of several terms in a contract does not discharge the

obligations of the parties to the contract, unless performance of that term is essential to

the purpose of the agreement, and default by a party who has substantially performed

does not relieve the other party from performance.” Hansel v. Creative Concrete &

Masonry Constr. Co., 148 Ohio App.3d 53, 2002-Ohio-198, 772 N.E.2d 138, ¶ 11 (10th

Dist.). Accord Fry, Inc. v. Cossett, 2d Dist. Clark No. CA-1797, 1983 WL 4967, *3 (Sept.

28, 1983). Furthermore, in order “[f]or the doctrine of substantial performance to apply,

the part unperformed must not destroy the value or purpose of the contract.” Hansel at

¶ 12.

{¶ 39} The employment agreement in this case was signed in September 2004,

and Becker performed under the contract for nearly 12 years; by all accounts, he

performed very successfully and without discipline. There was no suggestion or

evidence that Becker’s actions on March 31, 2016, destroyed the value or purpose of the
 -15-

contract.

{¶ 40} In O'Brien v. Ohio State Univ., 10th Dist. Franklin No. 06AP-946, 2007-

Ohio-4833, which also involved a terminated employment contract, the court noted that

“[t]he determination of whether a party's breach of a contract was a ‘material breach’ is

generally a question of fact.” Id. at ¶ 11. The court also stressed that “[t]he reasoning

behind this principle is that to determine whether a party's breach was material requires,

inter alia, an examination of the parties' injuries, whether and how much the injured parties

would or could have been compensated, and whether the parties acted in good faith. * * *

All of these inquiries turn on subjective facts.” Id.

{¶ 41} In O’Brien, the court further observed that “[a]t common law, a ‘material

breach’ of contract is a party's failure to perform an element of the contract that is ‘so

fundamental to the contract’ that the single failure to perform ‘defeats the essential

purpose of the contract or makes it impossible for the other party to perform.’ ” Id. at

¶ 56, quoting 23 Williston on Contracts, Section 63:3.

{¶ 42} Again, the evidence indicates that Becker did substantially perform under

the employment agreement, and whether his alleged violation of a company policy

defeated the agreement’s essential purpose turned on subjective facts. This was not a

question of law.

{¶ 43} As a final matter, we note that in the joint final pretrial statement, which was

filed shortly before trial, the parties jointly identified various “issues of fact and/or mixed

questions of fact and law.” Among these issues were: “(a) Whether Plaintiff engaged in

willful misconduct as that term is used under the Employment Agreement,” and “(b)

Whether Plaintiff’s employment was properly terminated for cause under the Employment
 -16-

Agreement.” Doc. #45, Joint Pretrial Statement, filed on October 4, 2017, p. 2. These

assertions are inconsistent with the contention that only pure issues of law were involved.

{¶ 44} Accordingly, the issue was not a “pure question of law,” and the jury verdict

in Becker’s favor rendered moot the issue of whether the trial court erred in denying

summary judgment. This is not to say that the trial court erred in denying the summary

judgment motion; the point is that any alleged error in that vein is moot due to the verdict

in Becker’s favor.

{¶ 45} In view of this conclusion, we do not need to consider DE’s argument about

ambiguity, but will discuss it when we evaluate the Second Assignment of Error. Based

on the preceding discussion, the First Assignment of Error is overruled.

III. Did the Trial Court Err in Failing to Grant DE’s Motion for Directed Verdict?

{¶ 46} DE’s Second Assignment of Error states that:

The Trial Court Erred in Failing to Direct a Verdict in Favor of

Appellant on Appellee’s Claims for Breach of Contract and Breach of the

Duty of Good Faith and Fair Dealing.

{¶ 47} Under this assignment of error, DE contends that the trial court erred in

failing to grant its motion for directed verdict. According to DE, Becker’s theory at trial

that he was discharged in bad faith so that DE could avoid paying him the amounts

specified in the employment agreement was based solely on the fact that an unidentified

individual asked McGarry to obtain a copy of Becker’s contract, which she then forwarded

to legal counsel. DE further notes that witnesses who participated in the discussions

about the termination decision testified that they did not review the contract and that it
 -17-

was not discussed. DE also made this assertion in connection with its argument on the

denial of its motion for summary judgment, i.e., stating that beyond counsel’s “naked

assertions,” no evidence supported this theory. After considering the evidence, we

disagree.

{¶ 48} Decisions on directed verdict motions are reviewed de novo. Schafer v.

RMS Realty, 138 Ohio App.3d 244, 257, 741 N.E.2d 155 (2d Dist.2000). The Supreme

Court of Ohio has said that:

When a motion for a directed verdict is entered, what is being tested is a

question of law; that is, the legal sufficiency of the evidence to take the case

to the jury. This does not involve weighing the evidence or trying the

credibility of witnesses; it is in the nature of a demurrer to the evidence and

assumes the truth of the evidence supporting the facts essential to the claim

of the party against whom the motion is directed, and gives to that party the

benefit of all reasonable inferences from that evidence. The evidence is

granted its most favorable interpretation and is considered as establishing

every material fact it tends to prove. The “reasonable minds” test of Civ.R.

50(A)(4) calls upon the court only to determine whether there exists any

evidence of substantial probative value in support of that party's claim.

Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d 66, 68-69, 430 N.E.2d 935 (1982).

{¶ 49} For the reasons previously discussed and for additional reasons that follow,

we conclude that the trial court properly denied DE’s motion for directed verdict.

{¶ 50} Initially, we agree with the trial court that the use of the term “willful

misconduct” in the employment agreement is ambiguous. As was noted, the pertinent
 -18-

provision is Section 9.4(b) of the agreement, which allows DE to terminate Becker with

cause. Under the agreement, this means that “the Company, acting in good faith based

upon the information then known to the Company, determines that the Executive: * * *

has engaged in acts of fraud, material dishonesty, or other acts of willful misconduct in

the course of his duties hereunder.” Plaintiff’s Ex. 1 at pp. 8-9.

{¶ 51} Although the agreement defines numerous terms in Section 1.1, it does not

define “willful misconduct.” “Contractual language is ‘ambiguous’ only where its meaning

cannot be determined from the four corners of the agreement or where the language is

susceptible of two or more reasonable interpretations.” United States Fid. & Guar. Co.

v. St. Elizabeth Med. Ctr., 129 Ohio App.3d 45, 55, 716 N.E.2d 1201 (2d Dist.1998).

{¶ 52} An argument could be made that willful misconduct could refer to many

kinds of actions, which were undefined, or it could be restricted to the type of conduct that

was like the conduct that was specifically named. This creates an ambiguity as to exactly

what conduct would be required.

{¶ 53} Since the agreement used the term “or other acts of willful misconduct,” it

can be read, under an established principle of construction, to indicate that willful

misconduct was intended to relate back and be confined to the same general nature as

the previous, more specific terms, which were fraud and material dishonesty. See, e.g.,

George H. Dingledy Lumber Co. v. Erie R. Co., 102 Ohio St. 236, 245, 131 N.E. 723

(1921) (under the doctrine of ejusdem generis, “where an enumeration of specific things

is followed by some more general word or phrase, such general word or phrase should

be held to include only things of the same general nature as those specified”).

{¶ 54} Eric Salzer, who hired Becker and signed the employment agreement on
 -19-

DE’s behalf, testified that willful misconduct alluded to fraud, theft or dishonesty, as in

“willfully, intentionally, willfully defrauding the company or stealing.” Tr. at p. 589. In a

footnote in its brief, DE objects to this extrinsic evidence, due to DE’s contention that the

contract was unambiguous. However, DE failed to object to this testimony at trial, and

any error has been waived. See, e.g., State ex rel. Holwadel v. Hamilton Cty. Bd. of

Elections, 144 Ohio St.3d 579, 2015-Ohio-5306, 45 N.E.3d 994, ¶ 50 (“to preserve an

issue for review, the party must make a timely objection”) (Emphasis sic).

{¶ 55} Even if an objection had been made, no error occurred, because the

agreement was ambiguous. See, e.g., United States Fid. & Guar. Co. 129 Ohio App.3d

at 55, 716 N.E.2d 1201 (where a contract is ambiguous, the court may properly consider

extrinsic evidence).

{¶ 56} Moreover, Salzer’s testimony simply coincides with the agreement’s link of

other willful misconduct to the specific enumerated acts. There is no dispute about the

fact that DE’s legal counsel prepared the agreement, and Ohio law is settled that

ambiguities in contracts are construed strictly against the drafter. See Zimmerman v.

Eagle Mtge. Corp., 110 Ohio App.3d 762, 778, 675 N.E.2d 480 (2d Dist.1996); Doe v.

Ronan, 127 Ohio St.3d 188, 2010-Ohio-5072, 937 N.E.2d 556, ¶ 49. If DE wished to

clarify that willful misconduct related to a different type of act, it could have defined the

term. DE also could have used language that did not link this general term to the type

of acts specifically listed.

{¶ 57} Our analysis could conclude here, because no evidence was provided at

trial that Becker engaged in any acts of fraud, theft, or material dishonesty. However,

we will briefly consider DE’s contention that no evidence was presented at trial to support
 -20-

Becker’s theory of the case. Again, we disagree.

{¶ 58} It is true that no witness admitted that DE terminated Becker in bad faith in

order to avoid paying him the amounts specified in the agreement. This is hardly

surprising, since the witnesses at trial were primarily either current DE employees or

former employees who were still employed in the industry. Even if this were otherwise,

however, direct evidence was not required. “Circumstantial evidence is not inherently

less reliable or certain than direct evidence. Both types of evidence inherently possess

the same probative value, and reasonable inferences may be drawn from both direct and

circumstantial evidence.” Sellers v. Whitt, 2d Dist. Greene No. 91 CA 96, 1993 WL

451575, *5 (Nov. 3, 1993), citing State v. Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492

(1991), and Donaldson v. N. Trading Co., 82 Ohio App.3d 476, 483, 612 N.E.2d 754 (10th

Dist.1992).

{¶ 59} Facts were presented from which a reasonable juror could conclude that

DE’s termination decision was made in bad faith to prevent Becker from collecting the

amounts due for termination without cause. See Ruta, 69 Ohio St.2d at 68-69, 430

N.E.2d 935. As noted above, the investigating human resources person, McGarry,

sought advice from Seeger, due to Seeger’s established knowledge of the discipline

history and process at Airtron. Even after being informed that Becker had “pushed”

Eads, Seeger recommended a written warning.

{¶ 60} After reviewing all the information, McGarry was also leaning toward a

written reprimand (the second step in the discipline process), and informed her

supervisor, Johnathan Phillips, of that fact. Her recommendation was based on the level

of the offense, Becker's long tenure at the company, and the fact that she was not aware
 -21-

of any prior discipline. After forming her initial recommendation, the only new fact that

McGarry learned was that Becker's latest performance review was an “exceeds”

expectations, but she changed her recommendation to termination.

{¶ 61} McGarry never offered an explanation for her change in recommendation,

other than that her supervisor told her to consider the issue more globally. However,

McGarry admitted that she already knew of the need to do this when she made her initial

recommendation. Tr. at pp. 671-672. In addition, during the discipline investigation, a

person superior in the organization asked McGarry to obtain a copy of Becker’s

employment agreement; she did so, and forwarded it to DE’s legal counsel. Different

inferences could arise from this. One inference is that decision-makers wanted to see

the agreement simply for proper business reasons. However, an equally plausible

inference is that the considerable amount of potential payout factored into the termination

decision. This is particularly plausible, since DE did not provide any evidence as to

consideration of willful misconduct for cause under the employment agreement.

{¶ 62} Specifically, Nolan Gardner, who participated in both conference calls, did

not recall any discussions between the workplace contact policy and how that applied to

willful misconduct. Tr. at p. 626. He further stated that it did not matter to him whether

Becker’s conduct was intentional or willful; it only mattered that it happened. Id. at p.

629.

{¶ 63} Similarly, McGarry, who investigated the case and participated in both

conference calls, stated that she did not have any discussion about whether the company

had cause to terminate Becker’s employment under his contract. Id. at p. 658. McGarry

also said that she did not know why Becker was deemed to have engaged in willful
 -22-

misconduct and denied severance because she was not involved in those discussions.

Id. at p. 659. However, the only discussions DE witnesses disclosed were those that

occurred during the conference calls. During her testimony, McGarry acknowledged that

no witness who was involved in the decision to deny Becker his benefits under the

agreement had come in to testify. Id. at p. 669. After McGarry finished testifying, DE

did not call any such witness. Scott Boose, who was involved in the conference call and

had testified earlier, did not discuss termination for cause based on willful misconduct or

how it was considered in relationship to Becker’s conduct.

{¶ 64} Finally, the remaining individuals who participated in the conference calls,

including Asthana, who made the termination decision, did not testify. Since there is no

indication that termination for cause based on “willful misconduct” was discussed as part

of the termination decision, it would be very difficult to conclude that DE made a good

faith decision to terminate Becker for willful misconduct.

{¶ 65} According to DE, triers of fact may not stack inferences on top of inferences.

However, that is not what happened. In Sellers, we noted Ohio’s extreme limitation of

the rule prohibiting stacking of inferences. Sellers, 2d Dist. Greene No. 91 CA 96, 1993

WL 451575, at *6. We stressed that the rule:

merely prohibits * * * “the drawing of one inference solely and entirely from

another inference, where that inference is unsupported by any additional

facts or inferences drawn from other facts. But the rule does not forbid the

use of parallel inferences in combination with additional facts. Nor does it

prohibit the drawing of multiple inferences separately from the same set of

facts. Because reasonable inferences drawn from the evidence are an
 -23-

essential element of deductive reasoning process by which most successful

claims are proven, the rule against stacking inferences must be strictly

limited.”

(Emphasis sic.) Id., quoting Donaldson, 82 Ohio App.3d at 481, 612 N.E.2d 754.

{¶ 66} In addition to the above evidence, other facts that indicated an improper

motive on the part of DE included the “script” that McGarry distributed the day before the

termination meeting, instructing that Becker could not be permitted to retire. As noted,

McGarry did not recall any reason why an employee could not be allowed to resign or

retire. Furthermore, the employment agreement provided Becker with certain payments

if he chose to terminate his employment agreement.

{¶ 67} Another set of facts, construed favorably to Becker, provided further

evidence supporting Becker’s theory of the case. McGarry testified that Airtron did not

have a zero tolerance policy, that it always depended on the facts and circumstances,

and that the company liked discipline to be consistent. However discipline for what DE

contended was “willful misconduct” (under its own definition, not the definition in Becker’s

contract) was not consistent.

{¶ 68} For example, a celebratory company dinner occurred in Las Vegas, with

around 20 to 25 senior DE employees in attendance, including division vice presidents

and regional managers, all the way up to Eric Salzer, the RSG president. At the dinner,

which was in a public restaurant, one vice president was engaged in a drinking contest

with another vice president. One of the individuals, a senior vice president, got up on a

table and spiked a drinking glass onto the table, like someone who would spike a football

after making a touchdown. The glass shattered, and Seeger, who was also present, was
 -24-

cut by the glass. In addition, the vice president used profanity. However, Salzer

decided to only verbally reprimand the vice president, due to the employee’s strong work

ethic and track record of performing well.

{¶ 69} The same night, another high-ranking DE employee threatened employees

of Carrier, which was an important Airtron vendor. Salzer testified that the encounter

was physical. However, Salzer did not fire this employee for willful misconduct or

terminate him for cause. His decision was based on the employee’s length of service,

outstanding record, record for being honest, and the fact that it was a “one-off” situation.

Salzer required the employee to write a letter of apology and verbally dressed him down.

{¶ 70} In 2006, McGarry investigated a vice president of an Airtron division in North

Carolina, who was accused of having personal discussions in the workplace about a

girlfriend, which made women in the office uncomfortable. In addition, the vice president

had entered his girlfriend in the company’s system as a vendor, which the company

thought was a conflict of interest. This vice president was not in the office as often as

DE wanted him to be, and he was also bringing his girlfriend into the office. He received

only a written reprimand.

{¶ 71} Finally, Eads was given only a warning with respect to the safety violations

that took place on March 31, 2016, even though he previously had been suspended for

violations. When McGarry was asked which was more serious – “poking someone in the

chest a few times and not causing any injury or committing four safety violations of the

type that Eads committed,” McGarry responded that “safety violations and harassment

and intimidation and physical touch can all be equal in terms – in seriousness.” Tr. at p.

237. When McGarry was asked why, if these violation can all be equal in seriousness,
 -25-

“the guy with the perfect record is fired and the guy with the imperfect record given a

warning”, McGarry’s response was only, “That was the decision that was made.” Id.

{¶ 72} In view of the above discussion, the trial court did not err in denying DE’s

motion for directed verdict. Substantial competent evidence existed to support Becker’s

claims, “ ‘ “upon which evidence reasonable minds might reach different conclusions.” ’ ”

Wagner v. Roche Laboratories, 77 Ohio St.3d 116, 119, 671 N.E.2d 252 (1996), quoting

Strother v. Hutchinson, 67 Ohio St.2d 282, 284-285, 423 N.E.2d 467 (1981) (other

citations omitted.).

{¶ 73} Accordingly, the Second Assignment of Error is overruled.

IV. Did the Trial Court Err in Instructing the Jury

on the Breach of Contract Claims?

{¶ 74} DE’s Third Assignment of Error states that:

The Trial Court Erred in Instructing the Jury on Appellee’s Breach of

Contract Claims.

{¶ 75} Under this assignment of error, DE argues, as it did before, that to succeed

on his breach of contract claim, Becker had to prove that he fulfilled his contractual

obligations. DE, therefore, contends that the trial court erred by failing to include a jury

instruction that DE proposed on breach of contract, and by also failing to include an

interrogatory asking the jury to find whether Becker proved that he performed all his

obligations under the contract. In addition, DE contends that the trial court excluded

express terms in the contract, and erred in refusing to instruct the jury on the dictionary

meaning of the terms “willful” and “misconduct.”
 -26-

{¶ 76} Trial courts have discretion whether to give requested jury instructions

“based on the dispositive issues presented during trial,” and we review the court’s

decision for abuse of discretion. Renfro v. Black, 52 Ohio St.3d 27, 30, 556 N.E.2d 150

(1990); State v. Elliott, 2d Dist. Montgomery No. 26104, 2014-Ohio-4958, ¶ 22. “ ‘Abuse

of discretion’ has been described as including a ruling that lacks a ‘sound reasoning

process.’ ” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14,

quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio

St.3d 157, 161, 553 N.E.2d 597 (1990). This type of review is deferential and does not

let us substitute our judgment for that of the trial court. Id.

{¶ 77} As a general rule, “a trial court must fully and completely give the jury all

instructions which are relevant and necessary for the jury to weigh evidence and

discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d

640 (1990), paragraph two of the syllabus. Parties are only entitled to have their

“proposed jury instructions given when they are correct statements of the law, pertinent

to the evidence in the record or to material issues, and are timely presented and not

already included in the substance of the jury charge.” Elliott at ¶ 23, citing State v.

Guster, 66 Ohio St.2d 266, 269, 421 N.E.2d 157 (1981).

{¶ 78} When a trial court considers whether to use a jury instruction, it has sound

discretion “to refuse to admit proposed jury instructions that are either redundant or

immaterial to the case.” Anousheh v. Planet Ford, Inc., 2d Dist. Montgomery No. 21960,

2007-Ohio-4543, ¶ 15. Furthermore, “ ‘[t]he trial court need not give a proposed

instruction in the precise language requested by its proponent, even if it properly states

an applicable rule of law. The court retains discretion to use its own language to
 -27-

communicate the same legal principles.’ ” Walker v. Conrad, 2d Dist. Montgomery No.

19704, 2004-Ohio-259, ¶ 21, quoting Youssef v. Parr, Inc., 69 Ohio App.3d 679, 591

N.E.2d 762 (8th Dist.1990).

{¶ 79} We have held that, to show reversible error in refusing to give proposed

instructions, “the proponent of the error must make a two part showing. First, he must

show that the trial court's refusal to give a proposed jury instruction was an abuse of

discretion; that is, the refusal was arbitrary, unreasonable, or unconscionable. * * *

Second, the proponent must demonstrate that he was prejudiced by the court's refusal to

give the proposed instruction. In this connection we note that prejudicial error occurs

only if the alleged instructional flaw cripples the entire jury charge.” (Citations omitted).

Jaworowski v. Med. Radiation Consultants, 71 Ohio App.3d 320, 327-328, 594 N.E.2d 9

(2d Dist.1991). Accord Witzmann v. Adam, 2d Dist. Montgomery No. 05-CV-4086, 2011-

Ohio-379, ¶ 73; Masden v. CCI Supply, Inc., 2d Dist. Montgomery No. 22304, 2008-Ohio-

4396, ¶ 22.

{¶ 80} After reviewing the jury instructions, we conclude that the trial court did not

abuse its discretion in failing to give all of Becker’s proposed instructions, nor was there

any evidence of prejudice.

{¶ 81} As was noted previously, in the joint pretrial statement, the parties agreed

to the contested issues of fact and/or mixed questions of fact and law. As pertinent here,

the issues were:

(a) Whether Plaintiff engaged in willful misconduct as that term is

used in the Employment Agreement.

(b) Whether Plaintiff’s employment was properly terminated for
 -28-

cause under the Employment Agreement.

(c) Facts relating to whether Defendant breached the Employment

Agreement with Plaintiff.

(d) Facts relating to whether Direct Energy breached the implied

covenant of good faith and fair dealing under the Employment Agreement.

Doc. #45, Joint Pretrial Statement at pp. 2-3.

{¶ 82} The only contested legal issue other than those implicit in the above

contested factual issues was whether the alleged defamatory statement (about Becker

“passing the torch”) was defamation per se or per quod – an issue that is irrelevant since

DE prevailed on Becker’s defamation claim.

{¶ 83} According to DE, the trial court misconstrued the contract even before

opening statement. The court and the parties discussed the contract prior to opening

statements, where the following exchange occurred:

THE COURT: For the Defendant to prevail on the breach of

contract case, the jury would have to respond to interrogatories or verdicts,

however we set it up, that A, the company acted in good faith –

MS. NEWCOMB (counsel for DE): To find in the company’s favor?

THE COURT: Yes.

MS. NEWCOMB: Yes, Yes.

THE COURT: And B, determined that it was willful misconduct.

MS. NEWCOMB: No, I think they’re together. I think * * * the

resolution of this depends on the language that the parties chose to put in

the agreement.
 -29-

THE COURT: So that’s what I asked you out of the gate.

***

THE COURT: What you’re saying and this is what has me

confused. What you seem to be saying to me is, as long as you’ve acted

in good faith, you’re good to go.

MS. NEWCOMB: Well, I think that’s what the contract says, how

the contract defines cause. If we have cause.

THE COURT: So if you’re – even if we all conclude that it was not

willful misconduct. Let’s assume he clapped his hands and that was the

alleged willful misconduct.

***

THE COURT: From your perspective, as long as * * * the company

acted in good faith when they discharged him, that would be okay.

MS. NEWCOMB: According to the contract, yes.

THE COURT: Yeah, see, that’s just not right, how I see it.

MR. FREKING (counsel for Becker): And Your Honor, I would say,

just by the very nature that we’re struggling with what that means –

THE COURT: I mean the objective of the trial * * * [Ms. Newcomb],

is to focus on the misconduct, right?

MS. NEWCOMB: Well, it’s to determine whether the company had

cause to terminate him for –

THE COURT: Right.

MS. NEWCOMB: -- willful misconduct
 -30-

THE COURT: Right.

MS. NEWCOMB: And to understand what cause is, you have to

look at the definition in the contract.

***

MS. NEWCOMB: You know, it would be no different than the

statement you read to the jury earlier. That our position is that we

determined in good faith, based on the information available to us, that he

engaged in willful misconduct, yes. It’s consistent with what you’re

already –

THE COURT: Yeah.

MS. NEWCOMB: Read to the jury.

(Emphasis added.) Tr. at pp. 162-164.

{¶ 84} The statement that the court previously read during the court’s voir dire of

the jury, was as follows:

This is a case that involves claims for breach of contract, breach of

the covenant of good faith and fair dealing, and defamation. The Plaintiff,

Stephen Becker, claims that the Defendant – the Defendant in this case is

called Direct Energy – breached the terms of his written employment

agreement when it fired him and that its decision to do so was made in bad

faith to avoid paying him compensation and other benefits under his

contract. Plaintiff also claims that the Defendant defamed him by making

false statements about his departure from the company that injured him.

Defendant denies these allegations.
 -31-

The Defendant asserts that it had cause to terminate the Plaintiff for

engaging in willful misconduct, pursuant to the terms of the written contract,

and that its decision to fire Plaintiff was made in good faith based on the

information then known to it. Defendant further denies that it defamed

Plaintiff.

(Emphasis added.) Tr. at p. 8.

{¶ 85} Since DE agreed with the statement that the court made to the jury about

the case, the trial court did not misconstrue the contract. During DE’s opening

statement, counsel specifically referred to the contract and its contention that DE had

“determined in good faith, based on the information that was known to them at the time,

that Mr. Becker had, in fact engaged in willful misconduct and that he should be fired for

cause.” Id. at pp. 198-199. DE’s counsel also talked about accountability and that

Becker had admitted violating DE’s policies, but thought he should “get off with a slap on

the wrist, a verbal warning, a written warning,” and “was unwilling to accept the

consequences of his actions.” Id. at p. 199.

{¶ 86} After the presentation of evidence ended, the trial court and parties had a

lengthy discussion of the most updated version of the jury instructions. See Tr. at pp.

712-774. During this discussion, DE appears to have had no objections to the following

parts of the instructions:

(1) The presentation of issues (p. 715).

(2) The recitation of undisputed facts (p. 719).

(3) The statement of what DE alleged and the recitation of the

factual issue regarding defamation (with a minor tweak) (pp. 720-721 and
 -32-

731-732).

(4) The burden of proof (p. 733).

(5) Evidence and inferences (p. 733).

(6) The instruction on breach of contract, after some discussion (pp.

733-738).

(7) The language about the parties’ intentions (p. 739; compare

actual instruction given to jury, p. 831).

(8) Circumstances in the employment agreement about terminating

Becker’s employment (p. 740; compare also actual instruction given to jury,

p. 831).

(9) The instruction on parties to contracts being bound by good faith

and fair dealing (pp. 749-750).

(10) The instruction on good faith (pp. 751-753).

(11) The damages instruction (pp. 753-754).

(12) Defamation instructions (pp. 756-757).

(13) The interrogatories the court prepared, with (according to DE’s

counsel), “the exception of a few just minor edits” (p. 760).

(14) The verdict forms (pp. 766-772).

{¶ 87} Furthermore, at pp. 722-731 of the transcript, the parties discussed an

instruction on the issue of fact for the jury to decide regarding Becker’s conduct. At that

point, both sides agreed to language suggested by DE, i.e., that the issue of fact for the

jury to decide was “whether or not Mr. Becker’s conduct with respect to Mr. Eads,

constituted an act of willful misconduct, and whether Mr. Becker’s employment was
 -33-

properly terminated for cause.” Tr. at p. 731. This was the language the court used

when it instructed the jury. See id. at p. 825.

{¶ 88} The matters that DE did object to include the following items:

(1) The court’s instruction on agency (pp. 716-719).

(2) The use of three “alleges” in the recitation of the contested

issues of facts (based on repetitiveness) (pp. 719-720).

(3) Exclusion, in an instruction regarding interpretation of contract

language, of the entire definition of cause, which stated that “ ‘Cause’ shall

mean that the Company, acting in good faith based upon the information

then known to the Company, determines that the Executive: * * * has

engaged in acts of fraud, material dishonesty or other acts of willful

misconduct in the course of his duties hereunder” (pp. 740-748; compare

actual instruction given at p. 832, lines 7-13).

(4) Defining fraud and material dishonesty by using definitions

taken from Ohio Jury Instructions (“OJI”) (pp. 748-749).

(5) Elimination of an instruction on nominal damages (p. 755).

{¶ 89} After the conference, the court printed a final version of the instructions,

interrogatories, and verdict forms, and gave them to the parties the next day. At that

time, the court asked for further objections, and DE renewed its objection to including the

OJI definitions, particularly with respect to fraud. Tr. at pp. 777-779. DE also suggested

a change to an interrogatory on punitive damages (which is irrelevant to this appeal), and

Becker agreed. Id. at pp. 779-780.

{¶ 90} Based on the above facts, it is clear that the trial court instructed the jury as
 -34-

the parties had generally agreed, subject to the few objections DE made. Whether or

not DE proposed a specific instruction on breach of contract prior to trial, the fact is that

DE agreed to the instruction that was given. DE did not ask the court during the charge

conference to instruct the jury as to Becker’s failure to perform under the contract.

{¶ 91} The same point is true with respect to the interrogatories, as DE agreed to

them as well. Accordingly, there is no merit to DE’s argument that the court erred by

failing to instruct the jury as to Becker’s performance under the contract or with respect

to a special interrogatory asking the jury to decide if Becker performed all his obligations

under the contract. DE waived these points by explicitly agreeing to the pertinent

instructions and interrogatories. Goldfarb v. The Robb Report, Inc., 101 Ohio App.3d

134, 145, 655 N.E.2d 211 (10th Dist.1995) (defendant who agreed to instructions cannot

contend on appeal that standard for breach of contract in instructions was erroneous);

McKinley v. Supermet, Div. of Stanadyne, Inc., 2d Dist. Montgomery No. 8591, 1984 WL

3840, *1 (Aug. 27, 1984); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436

N.E.2d 1001 (1982).

{¶ 92} In Schade, the court noted that if wavier occurs, courts can consider plain

error, which is noticed with “ ‘utmost caution, under exceptional circumstances and only

to prevent a manifest miscarriage of justice.’ ” Schade at 209, quoting State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. No such

circumstances exist here. The jury was instructed on the points in question as DE

expressly agreed; doing what a party asks does not involve a manifest miscarriage of

justice.

{¶ 93} DE also contends that the trial court rewrote the contract by striking the
 -35-

contractually agreed-upon definition of “cause” for the termination and by precluding

counsel from mentioning the “good faith” language in the contract while making its closing

argument. This is simply not correct.

{¶ 94} At the pages of the transcript that DE cites (pp. 164 and 729), the trial court

did not state that DE would be precluded from arguing its own good faith in closing.

Moreover, as we noted, DE did, in fact, agree to the trial court’s statements about the

contract during voir dire. DE also discussed this issue in its opening statement. DE

then agreed with the instructions on good faith and breach of contract, and, itself,

formulated the statement that the issue of fact for the jury to decide was “whether or not

Mr. Becker’s conduct with respect to Mr. Eads, constituted an act of willful misconduct,

and whether Mr. Becker’s employment was properly terminated for cause.” Tr. at p. 731.

This is the instruction the court gave to the jury. Id. at p. 825.

{¶ 95} Furthermore, the trial court instructed the jury on the specific definition of

“cause” in the employment agreement, and twice stated that the determination must be

made in good faith. See Tr. at pp. 824 and 825.

{¶ 96} DE also spent substantial time in closing discussing DE’s thoughtful and

deliberate decisions; the thoroughness and extensiveness of its investigation; the reasons

why DE decided to terminate Becker; why DE’s decision to terminate Becker was “risky”

for DE because it would mean losing profit; DE’s lack of intention to do a “money grab”

and its lack of bad faith; DE’s commitment to “treating people with dignity and respect”;

how DE treated Becker with dignity and respect; the inappropriate and wrongful nature of

Becker’s actions; the fact that DE’s code of conduct defined proper and improper conduct

and that those policies were incorporated into Becker’s employment contract, which the
 -36-

jury would have; Becker’s willful misconduct; and the need for Becker to be held

accountable. See Tr. at pp. 799, 800, 801, 802, 804-805, 808, 810-811, 813, and 816.

{¶ 97} In addition, DE stressed that the jury could “read the definition of cause”

when it took a look at Becker’s employment contract. Id. at p. 801. DE was not

precluded from commenting on its own good faith in making the employment decision.

{¶ 98} DE’s third argument regarding the jury instructions is that the trial court

erred in failing to instruct the jury with dictionary definitions of willful and misconduct, and

by defining the terms fraud and material dishonesty based on OJI instructions, not from

the dictionary. DE did preserve an objection to this, as noted above. As support for this

argument, DE first contends that the trial court improperly concluded that the contract was

ambiguous. We have already rejected that argument.

{¶ 99} DE next argues that there was no indication in the contract that the parties

intended to use legal definitions for fraud and material dishonesty. Additionally, DE

contends that the instructions effectively shifted the burden of proof from Becker to DE.

{¶ 100} As we noted earlier, DE drafted the agreement, and ambiguities in

contracts are construed strictly against the drafter. Zimmerman, 110 Ohio App.3d at

778, 675 N.E.2d 480. In addition, we observed that the agreement defined various

terms, but did not define “willful misconduct.” We then applied principles of construction

(ejusdem generis) to conclude that the meaning of willful misconduct was intended to

relate back and be confined to the same general nature as the previous, more specific

terms, which were fraud and material dishonesty. George H. Dingledy Lumber Co., 102

Ohio St. at 245, 131 N.E. 725. DE agreed with this principle during discussion of the jury

instructions. Tr. at pp. 747-748.
 -37-

{¶ 101} In its briefs, DE contends that by including the definitions of fraud and

material dishonesty in the jury instructions, and through its various rulings, the trial court

shifted the burden from “DE having the discretion to terminate Becker for Cause if it

determined in good faith based on the available information that he engaged in willful

conduct” to “DE only being able to terminate Becker for Cause if it could prove he engaged

in legal fraud or legal material dishonesty.” (Emphasis sic.) Brief of Appellant, p. 28;

Reply Brief of Appellant, p. 13.

{¶ 102} However, the trial court did not instruct the jury that it was required to find

that Becker committed fraud or material dishonesty. Instead, the court simply said that

“the terms fraud or material dishonesty may be instructive regarding the seriousness

required for behavior * * * to constitute an other act of willful misconduct.” (Emphasis

added.) Id. at p. 832. This would be consistent with the contract and the principle of

ejusdem generis.

{¶ 103} As an additional matter, after defining these terms, the trial court stated

that: “Thus, you may consider that an act of willful misconduct is misconduct committed

voluntarily and intentionally, not something that is by accident or neglect.” Id. at 833.

The dictionary definition of “willful” is “done deliberately: INTENTIONAL.” Mirriam-

Webster, https://www.merriam-webster.com/dictionary/willful (accessed Sept. 25, 2018).

“Misconduct” is defined as “intentional wrongdoing,” and “improper behavior.” Mirriam-

Webster, https://www.merriam-webster.com/dictionary/misconduct (accessed Sept. 25,

2018). These definitions are consistent with the trial court’s instructions.

{¶ 104} As a final matter, we note that DE contends that, if the trial court had used

the express terms of the contract, it would have directed the jury to evaluate whether
 -38-

there was cause for termination by using this two-step analysis: “(1) Did DE determine

that Becker engaged in willful misconduct in the course of its duties?”; and “(2) Was that

decision made in good faith based on the information then known to DE?.” Appellant’s

Brief, p. 25. However, the first inquiry is unnecessary, because it was never in dispute –

at least that is the reason that DE has consistently recited for Becker’s termination and

was the only reason discussed throughout the case. In essence, then, according to DE,

the only issue as to cause for termination was whether DE acted in good faith. In this

regard, the trial court instructed the jury that:

The issue of fact for you, the jury, to decide is whether or not Mr.

Becker’s conduct with respect to Mr. Eads constituted an act of willful

misconduct and whether Mr. Becker’s employment was properly terminated

for cause. As indicated above, the agreement provides that the termination

must be made in, quote, “good faith.” Thus, a second issue is whether

Direct Energy’s termination of Mr. Becker on the basis that his conduct was

an act of willful misconduct, breached [its] obligation to exercise good faith

and fair dealing in interpreting the agreement to justify terminating Mr.

Becker’s employment.

Tr. at pp. 825-826.

{¶ 105} In view of this instruction, DE’s argument is based on the proverbial

“distinction without a difference.” Accordingly, we find no abuse of discretion or error in

the trial court’s instructions. The Third Assignment of Error, therefore, is overruled.

V. Did the Trial Court Err in Awarding Attorney Fees?
 -39-

{¶ 106} DE’s Fourth Assignment of Error states that:

The Trial Court Erred in Finding that Appellant Acted in Bad Faith

and Awarding Attorney Fees.

{¶ 107} Under this assignment of error, DE makes four main points: (1) attorney

fees for bad faith conduct are allowed only in limited situations, and DE’s conduct did not

fit within the exception; (2) the trial court created a new exception by concluding that a

jury’s finding of an absence of good faith equates to bad faith sufficient to impose attorney

fees; (3) even if such a breach could automatically lead to an award of fees under the bad

faith exception, the jury verdict resulted from the trial court’s “escalating errors” and

cannot stand; and (4) the court abused its discretion by penalizing DE for mounting a

colorable defense.

{¶ 108} Ohio follows the “American rule,” which provides that prevailing parties in

civil actions may not recover attorney fees as part of litigation costs. Wilborn v. Bank

One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 7. This rule has

limited exceptions, including the one asserted here, i.e., that a prevailing party may be

awarded attorney fees after demonstrating the unsuccessful litigant’s bad faith. Id., citing

Pegan v. Crawmer, 79 Ohio St.3d 155, 156, 679 N.E.2d 1129 (1997).

{¶ 109} Bad faith can involve conduct during litigation, but can also involve conduct

giving rise to a party’s claim. See, e.g., Brooks v. Dayton, 70 Ohio App.3d 722, 723, 591

N.E.2d 1352 (2d Dist.1990) (fees awarded based on city’s failure to return money that

police had seized); Thomason v. Hamilton, 2d Dist. Greene No. 07-CA-60, 2008-Ohio-

3492, ¶ 10 (trial court erred in awarding attorney fees to plaintiff when it granted motion

for default judgment; plaintiff’s complaint did not allege bad faith on defendant’s part);
 -40-

SST Bearing Corp. v. Twin City Fan Cos., Ltd., 1st Dist. Hamilton No. C-110611, 2012-

Ohio-2490, ¶ 28-30 (attorney fees awarded based on trial court’s finding that defendant

acted in bad faith in cancelling a contract); Clem v. Steiner, 11th Dist. Portage No. 2002-

P-0056, 2003-Ohio-4865, ¶ 28 (evidence at trial showed that contractor willfully and

wrongfully withheld payment from subcontractor, and trial court properly awarded attorney

fees under the “bad faith” exception).

{¶ 110} Trial court decisions on attorney fees are within the court’s sound

discretion and are reviewed for abuse of discretion. SST Bearing Corp. at ¶ 29; Clem at

¶ 28;

{¶ 111} As was noted above, the parties agreed on the interrogatories to be

answered by the jury. In an interrogatory relating to breach of good faith and fair dealing,

the jury was asked the following question:

Do you find that Plaintiff proved by the preponderance of the

evidence that Defendant’s decision to terminate him “for cause” was made

in bad faith to take advantage of Plaintiff and improperly deny him the

benefits he would have received if he had been terminated “without cause”

under the contract?

Doc. #68, p. 3.

{¶ 112} The jurors unanimously answered “yes” to this question. Id. After

Becker filed an application for attorney fees, and the parties had briefed the matter, the

trial court filed a decision awarding attorney fees to Becker. In doing so, the court relied

on a number of points. First, the court noted the jury’s finding of bad faith. In addition,

the court noted its instruction to the jury that it could not find for Becker regarding a breach
 -41-

of good faith and fair dealing unless it found that DE’s action in terminating Becker from

his position for cause “ ‘was not an act of honesty in interpreting and applying the

language in the Employment Agreement, but was instead an act of dishonesty in applying

the definition of cause for an ulterior purpose or motive, and not a truthful interpretation

or application of the definition of “cause” as contemplated by the parties.’ ” Doc. #88,

Decision and Entry Regarding Motion for Award of Attorney Fees, p. 2, quoting Jury

Instructions, p. 10.

{¶ 113} Next, the court discussed various authorities allowing attorney fees under

the bad faith exception to the American rule. The court also remarked that, based on the

jury’s findings, DE’s imposition of its interpretation of “cause” was done for “ulterior

purposes and not as a result” of Becker’s conduct. Id. at p. 6. The court further stressed

that the jury had found DE’s “interpretation and continued emphasis of it as a defense, to

be dishonest.” Id. at pp. 6-7. After deducting $570 that Becker conceded should be

eliminated, the court awarded Becker the remaining amount he had requested in attorney

fees. Id. at p. 9.

{¶ 114} As was noted, DE’s first argument is that its conduct did not fit within the

limited exception for bad faith. According to DE, Ohio courts have typically only enforced

this exception where a party enters into a contract intending to violate it or where a

breaching party’s conduct is characterized by vengefulness or desire to harm the other

side. This is inaccurate. While these can be grounds, the cases we cited did not require

vengefulness or a desire to harm, nor did they involve circumstances where a party

entered into a contract intending to violate it.

{¶ 115} However, even if such facts were required, the jury specifically found that
 -42-

DE acted in bad faith to take advantage of Becker and deny him benefits. This certainly

indicates a desire to harm.

{¶ 116} DE’s second argument is that the trial court’s decision created a new “per

se” rule that a violation of the duty of good faith and fair dealing automatically results in

an award of attorney fees. Again, we disagree. The jury did not just find that DE had

breached the duty of good faith and fair dealing; it specifically found that DE had acted to

take advantage of Becker. In addition, the trial court relied on the jury instructions, which

made a bad faith decision contingent on finding that DE acted dishonestly. Doc. #88 at

p. 2. Jury instructions will not be the same in every case, and we do not view the trial

court’s decision as a “per se” rule. All cases will be decided on their own facts.

{¶ 117} In connection with this argument, DE also argues that the trial court

misunderstood applicable law. According to DE, there is a distinction between a lack of

good faith and bad faith, because “ ‘[a] violation of the covenant of good faith and fair

dealing does not require a showing of bad faith, but rather a lack of good faith.’ ”

Appellant’s Brief, p. 31, quoting Lewis v. Am. Warming & Ventilating, Lucas C.P. No. CI

201401193, 2015 Ohio Misc. LEXIS 22009 [*12, fn.9 (Jan. 15, 2015)]. Based on the

quoted statement, DE proposes that the lack of good faith is an “intermediate step”

between good faith and the presence of bad faith and is not sufficient for an award of

attorney fees.

{¶ 118} As a preliminary point, we note that Lewis is the only case cited by DE for

this proposition. However, Lewis applied Massachusetts law. Lewis also did not

involve a bad faith claim for attorney fees.

{¶ 119} In Slater v. Motorists Mut. Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45, 46
 -43-

(1962), the Supreme Court of Ohio stated that:

A lack of good faith is the equivalent of bad faith, and bad faith, although

not susceptible of concrete definition, embraces more than bad judgment or

negligence. It imports a dishonest purpose, moral obliquity, conscious

wrongdoing, breach of a known duty through some ulterior motive or ill will

partaking of the nature of fraud. It also embraces actual intent to mislead

or deceive another.

Id. at paragraph two of the syllabus.

{¶ 120} Slater and another case, Motorists Mut. Ins. Co. v. Said, 63 Ohio St.3d

690, 590 N.E.2d 1228 (1992), were overruled on other grounds in Zoppo v. Homestead

Ins. Co., 71 Ohio St.3d 552, 644 N.E.2d 397 (1994). In Zoppo, the court noted that until

its decision in Said, “the element of intent had been notably absent from this court's

definition of when an insurer acts in bad faith.” Zoppo at 554. Instead, the court had

“applied the ‘reasonable justification’ standard to bad faith cases.” Id. Under this

standard, “ ‘an insurer fails to exercise good faith in the processing of a claim of its insured

where its refusal to pay the claim is not predicated upon circumstances that furnish

reasonable justification therefor.’ ” Id., quoting Staff Builders, Inc. v. Armstrong, 37 Ohio

St.3d 298, 303, 525 N.E.2d 783 (1988). The court stressed that intent had never been

part of this standard. Id. at 555.

{¶ 121} After the decision in Zoppo, Ohio courts have continued to use the

definition in Slater to define bad faith, although, of course, a requirement of intent for bad

faith in processing claims would not apply to insurers. In this context, see, e.g., Palmer

v. Daniel Troth & Son Builders, Inc., 10th Dist. Franklin No. 97APE08-1050, 1998 WL
 -44-

255566, *6 (May 19, 1998) [(affirming attorney fees trial court awarded for plaintiff’s bad

faith in bringing groundless claim under Consumer Sales Practices Act (“CSPA”)); State

ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs., 8th Dist. Cuyahoga No. 93058, 2009-

Ohio-5573, ¶ 14 (violation of Civ.R. 11 by filing for writ of mandamus in bad faith);

DiPasquale v. Costas, 186 Ohio App.3d 121, 2010-Ohio-832, 926 N.E.2d 682, ¶ 127 (2d

Dist.) (definition applied to breach of fiduciary duty of good faith); LEH Properties, Inc. v.

Pheasant Run Assn., 9th Dist. Lorain No. 10CA009780, 2011-Ohio-516, ¶ 1 (affirming

award of attorney fees in case involving breach of a settlement agreement and award of

attorney fees based on bad faith exception); Semco, Inc. v. Sims Bros., 3d Dist. Marion

No. 9-12-62, 2013-Ohio-4109, ¶ 49 (affirming award of attorney fees based on bad faith

in including CSPA claim in complaint).

{¶ 122} However, even if a distinction existed between “lack of good faith” and “bad

faith,” the jury specifically found that DE acted in “bad faith with intent to take advantage

of” Becker and “to deny him the benefits he would have received if he had been

terminated without cause.” This is not merely a “lack of good faith”; it is a specific finding

of bad faith, i.e., conscious wrongdoing.

{¶ 123} As was noted, DE’s third argument is that the award of attorney fees

should be set aside due to the trial court’s “escalating errors.” Since we have concluded

that no error existed, we need not address this point further.

{¶ 124} DE’s final argument is that the trial court abused its discretion by penalizing

DE for mounting a colorable defense. In this regard, DE points out that it obtained

dismissal of two counts (unjust enrichment and intentional misrepresentation) on

summary judgment, and prevailed at trial on the defamation claim. According to DE,
 -45-

defendants are generally not liable for attorney fees when they are at least partially

successful. In addition, DE contends that the trial court punished it for making tactical

decisions, which is prohibited.

{¶ 125} We have reviewed the decision, and the trial court’s choice to award

attorney fees was based on the jury’s findings, not on the court’s alleged desire to punish

DE for trying the case. Throughout the decision, the court repeatedly focused on the

jury’s findings.

{¶ 126} As support for its contention that the trial judge punished it, DE quotes the

following statement:

The court finds that Defendant’s conduct toward Becker caused him

to incur attorney fees to pursue this action even to a jury trial in which it told

the jury that Becker had violated the company’s behavior standards and had

physically attacked the subordinate employee and bullied him contrary to

important company policies. The jury found this interpretation and the

continued emphasis of it as a defense, to be dishonest.

(Emphasis added.) Appellant’s Brief at p. 34, fn. 8, quoting Doc. #88 at pp. 6-7.

However, even in making this statement, the trial court relied on the jury’s findings.

{¶ 127} As to DE’s other contention, a case cited by DE did hold that “where a

defense to a complaint is at least partially successful, a defendant is generally not

responsible for attorney fees under the bad faith exception to the American Rule.” State

ex rel. Davis v. Hocking Cty. Commrs., 4th Dist. Hocking No. 94CA19, 1995 WL 767921,

*8 (Dec. 22, 1995), citing State ex rel. Caspar v. City of Dayton, 53 Ohio St.3d 16, 20,

558 N.E.2d 49 (1990), and State ex rel. Kabatek v. Stackhouse, 6 Ohio St.3d 55, 451
 -46-

N.E.2d 248 (1983).

{¶ 128} In considering this issue, the trial court noted the parties’ arguments, with

DE contending that attorney fees should be reduced because Becker was not the

prevailing party on several claims, while Becker contended that all the claims were based

on the same core facts and that different theories of recovery were not a basis to reduce

the reasonableness of the overall fee. The court concluded that Becker was the

prevailing party because, while three theories went to the jury, they “all were part of the

same set of facts.” Doc. #88 at p. 8. In addition, the court provided the following

reasoning for awarding the total amount of requested fees:

Although Direct Energy’s defenses to each theory cannot be considered as

bad faith, the jury only considered the breach of good faith and fair dealing

with respect to the contract claim. The jury viewed Direct Energy’s defense

as dishonest and, necessarily, Becker’s view as valid and honest. But for

Direct Energy’s bad faith in breaching the contract and maintaining its

dishonest position throughout the trial, Becker would not have been forced

to incur attorney’s fees to vindicate his honest view of the contract. Thus,

all fees incurred were necessarily the result of defendant’s bad faith. The

jury did reject the defamation claim on its merits, but very likely considered

the statement that Becker was merely “passing the torch” as a veiled cover-

up for its “dishonest” decision to terminate Becker for cause, denying him

the benefit of the bargain, and forcing the litigation that ended in the jury

trial.

Id. at p. 8.
 -47-

{¶ 129} As was noted, we review the trial court’s decision on attorney fees for

abuse of discretion. SST Bearing, 1st Dist. Hamilton No. C-110611, 2012-Ohio-2490, at

¶ 29. This is a deferential review and does not allow us to substitute our judgment for

that of the trial court. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, at

¶ 14. Most often, an abuse of discretion means that a ruling lacked a sound reasoning

process, but it also includes decisions that are arbitrary or capricious. AAAA Ents., 50

Ohio St.3d at 161, 553 N.E.2d 597.

{¶ 130} After reviewing the decision, we cannot find an abuse of discretion.

Notably, the rule that DE relies on is a general rule. In addition, the cases we mentioned

above do not assist because the courts found no bad faith, and, therefore, did not consider

whether, or to what extent, fees should be reduced. See Davis, 4th Dist. Hocking No.

94CA19, 1995 WL 767921, at *8 (no evidence of bad faith); Caspar, 53 Ohio St.3d at 20,

558 N.E.2d 49 (because defense was partially successful, defendant did not act in bad

faith); Kabatek, 6 Ohio St.3d at 56, 451 N.E.2d 248 (the fact alone of interposing an

unsuccessful defense does not demonstrate bad faith). In contrast to these cases, DE

was specifically found to have acted in bad faith.

{¶ 131} In the context of claims under 42 U.S.C. 1988, parties are considered

“prevailing for attorney fees purposes if they succeed on any significant issue in litigation

that achieves some of the benefit the parties sought in bringing suit.” Knutty v. Wallace,

100 Ohio App.3d 555, 559, 654 N.E.2d 420 (10th Dist.1995). Similarly, in a case

involving the CSPA, the Supreme Court of Ohio agreed that the “ ‘substantial-victory’ test”

accorded “with the intent and purpose of the statutory allowance of attorney fees.”

Parker v. I & F Insulation Co., 89 Ohio St.3d 261, 264, 730 N.E.2d 972 (2000). Under
 -48-

this test, “a party ‘must achieve only substantial, not complete, victory.’ ” Id., quoting

from Parker at *6.

{¶ 132} The standard used in Parker has also been applied in a case where the

trial court awarded fees under both R.C. 2323.51 and the common law, i.e., where, as

here, the losing party was deemed to have acted in bad faith. Thomas v. Cincinnati, 1st

Dist. Hamilton No. C-050643, 2006-Ohio-3598, 2006 WL 1934402, *3. In affirming the

award, the court of appeals commented that:

A prevailing party is one who has been awarded at least some relief on the

merits of his or her claims. * * * A party who appeals an order or judgment

and prevails to the extent that he obtains a new trial, or a modification of the

judgment, is a prevailing party. The party need only obtain a substantial,

not a complete, victory. Parker v. I & F Insulation Co., 89 Ohio St.3d 261,

264-265, 2000-Ohio-151, 730 N.E.2d 972. The issue is whether, at the

end of the suit or other proceeding, the party who has made a claim against

the other has successfully maintained it.

(Citations omitted.) Thomas at *4.

{¶ 133} Furthermore, even if this standard were not applied here, courts have held

that “it is not always possible to divide attorney fees for distinct claims. If claims ‘involve

a common core of facts or will be based on related legal theories,’ it may be ‘difficult to

divide the hours expended on a claim-by-claim basis.’ ” Edlong Corp. v. Nadathur, 1st

Dist. Hamilton No. C-120369, 2013-Ohio-1283, ¶ 16, quoting Hensley v. Eckerhart, 461

U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Thus, “where multiple claims are

rooted in the same allegations, facts, discovery, and legal arguments, a trial court does
 -49-

not abuse its discretion in awarding attorney fees for the time spent on the claims.” Id.

See also Arnett, 2d Dist. Montgomery No. 25371, 2013-Ohio-1065, at ¶ 50; Miller v.

Grimsley, 197 Ohio App.3d 167, 2011-Ohio-6049, 966 N.E.2d 932, ¶ 17 (10th Dist.);

Gilson v. Am. Inst. of Alternative Medicine, 10th Dist. No. 15AP-548, 2016-Ohio-1324, 62

N.E.3d 754, ¶ 119.

{¶ 134} Arnett involved a situation in which a land contract provided for payment

of reasonable attorney fees in the event of a default. Id. at ¶ 34. The seller brought suit

and prevailed on a breach of contract claim, but did not prevail on his claims for

reimbursement of past property taxes and condominium fees. Id. at ¶ 48. On appeal,

the defendant claimed the seller should not have been awarded the full amount of his

attorney fees because he failed to prevail on some issues. Id. We concluded that the

trial court did not abuse its discretion in awarding the full amount of the fees, because the

claims in the seller’s “amended complaint involved a common core of facts, making it

difficult to separate ‘a claim for which fees are recoverable and a claim for which no fees

are recoverable.’ ” Id. at ¶ 52, quoting Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d

143, 145, 569 N.E.2d 464 (1991).

{¶ 135} In Hensley, the court explained the reasoning for failing to separate fees.

The court observed that many cases (there, a civil rights case), “will present only a single

claim. In other cases the plaintiff's claims for relief will involve a common core of facts

or will be based on related legal theories. Much of counsel's time will be devoted

generally to the litigation as a whole, making it difficult to divide the hours expended on a

claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims.”

Hensley, 461 U.S. at 435, 103 S.Ct. 1933, 76 L.Ed.2d 40.
 -50-

{¶ 136} In the case before us, the trial judge, who presided over the entire

proceeding, including the jury trial, agreed with Becker that all the claims were based on

the same core set of facts, and that fees should not be reduced. Doc. #88 at pp. 7-8.

Based on our review of the entire record, we cannot conclude that this decision was an

abuse of discretion.

{¶ 137} Becker’s claim for defamation was based on a statement that DE made to

employees about his departure. DE employee, Holly Waterson, put together the alleged

defamatory statement, which said that Becker was “passing the torch” to another

employee. Waterson stated that she knew Becker was being terminated for cause, and

that, in her opinion, the use of this phrase was intended to suggest that Becker was

leaving voluntarily. Tr. at pp. 501-502.4 She also described it as an “internal calms

piece” and said there might have been concern in the organization if the communication

stated that Becker had been terminated or if there were no communication about his

departure. Id. McGarry also testified that Becker did not leave because he was

“passing the torch” to another employee; instead he was terminated. Tr. at pp. 275.

{¶ 138} One interpretation of these facts is that DE was using this untrue statement

to cover up its dishonest decision, as the trial court suggested. Doc. #88 at p. 8. As a

result, the facts were intertwined, and the claims were all part of the same facts. The

trial court’s choice not to reduce the fees, therefore, was not unsound, arbitrary, or

capricious.

{¶ 139} Accordingly, the Fourth Assignment of Error is overruled.

4Waterson did not testify at trial, but her deposition was read to the jury. See Tr. at p.
499.
 -51-

VI. Conclusion

{¶ 140} All of Appellant’s assignments of error having been overruled, the

judgment of the trial court is affirmed.

.............

DONOVAN, J. and TUCKER, J., concur.

Copies sent to:

Jeffrey M. Silverstein
Randolph H. Freking
Angelique Paul Newcomb
Chad J. Kaldor
Hon. Richard Skelton