[Cite as Airtron, Inc. v. Tobias, 2021-Ohio-2213.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
AIRTRON, INC. : : Plaintiff-Appellee/Cross- : Appellate Case Nos. 29012 & 29019 Appellant : : Trial Court Case No. 2020-CV-2802 v. : : (Civil Appeal from JAMES TOBIAS, et al. : Common Pleas Court) : Defendants-Appellants/Cross- : Appellees
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OPINION
Rendered on the 30th day of June, 2021.
STEPHEN A. WEIGAND, Atty. Reg. No. 0083573 & D. JEFFREY IRELAND, Atty. Reg. No. 0010443, 110 North Main Street, Suite 1600, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee/Cross-Appellant, Airtron, Inc.
DAVID C. GREER, Atty. Reg. No. 0009090, JAMES H. GREER, Atty. Reg. No. 0046555, & KEVIN C. QUINLAN, Atty. Reg. No. 92999, 6 North Main Street, Suite 400, Dayton, Ohio 45402 Attorneys for Defendant-Appellant/Cross-Appellee, James Tobias
THOMAS M. GREEN, Atty. Reg. No. 0016361, 800 Performance Place, 109 North Main Street, Dayton, Ohio 45402 Attorney for Defendants-Appellants/Cross-Appellees, A-1 Mechanical, LLC & Daniel Tobias
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EPLEY, J. -2-
{¶ 1} This appeal stems from various employment contracts between Defendant-
Appellant/Cross-Appellee James Tobias and his former employer, Plaintiff-
Appellee/Cross-Appellant Airtron, Inc., as well as Tobias’s involvement in the creation of
a business that competes with Airtron. James Tobias appeals from the trial court’s ruling
that he breached a non-disclosure, non-competition, and non-solicitation agreement.
Additionally, he appeals the granting of a permanent injunction against him related to
breaching that agreement. Finally, James Tobias appeals from a decision regarding
whether other unresolved claims are subject to a jury trial. Defendants-Appellants A-1
Mechanical and Daniel Tobias also appeal the enforcement of the non-compete
provisions. Airtron appeals the trial court’s judgment against it and in favor of James
Tobias, which concluded that it breached a contract regarding employee bonuses. For
the reasons that follow, the appeals of James Tobias, Daniel Tobias, and A-1 Mechanical
will be dismissed for lack of a final appealable order. The trial court’s judgment in favor of
Tobias and against Airtron will be reversed.
I. Facts and Procedural History
{¶ 2} The business relationship between James Tobias and Airtron, Inc. began in
1982 when the company hired Tobias to do heating and air conditioning work. That
employment relationship lasted until 2008, at which time he was terminated. Airtron did,
however, pay James Tobias his salary for a year, and in return, he honored a one-year
non-compete agreement.
{¶ 3} In 2009, James Tobias started his own company, Five-Star, which he owned
and operated until 2013, when he was re-hired by Airtron as a Commercial and Consumer
Salesperson and brought his Five-Star employees and customers with him. This new -3-
position required a non-disclosure, non-solicitation, and non-competition agreement (“the
Agreement”), which he signed on May 28, 2013.
{¶ 4} By signing the document, James Tobias acknowledged that he would have
access to confidential proprietary information of Airtron, including information related to
the company’s method of estimating and pricing, mechanical designs, supplier
information and material pricing, policy manuals, computer programs, and customer lists
and information. He agreed to never (during or after his employment) communicate the
information to anyone else or use it for his own benefit.
{¶ 5} James Tobias agreed not to compete with Airtron directly or indirectly in the
residential, multi-family, and light commercial plumbing and HVAC markets within a 100-
mile radius of his geographic territory. The Agreement also contained a non-solicitation
covenant in which James Tobias agreed not to solicit (or to assist in such solicitation) or
hire any employee, including former employees, who had been employed by Airtron within
the past year. In addition, he agreed not to solicit any clients or customers of the company
within one year of the termination of his employment. Another feature of the Agreement
was that it contained a “Waiver of Jury Trial” provision which stated: “The parties hereto
waive all right to trial by jury in any action or proceeding to enforce or defend any rights
under this agreement and any document executed in connection herewith.”
{¶ 6} The company, in turn, agreed to pay Tobias $25,000 as consideration for
signing the Agreement.
{¶ 7} On February 10, 2014, James Tobias was promoted to Vice President of
Airtron’s West Chester division. His new employment contract included a salary, a
commission, a bonus under the Vice President Incentive Plan, an enhanced bonus under -4-
the Enhanced Incentive Plan, and a vehicle allowance. A new Vice President Incentive
Plan was signed each year. Between 2014 and 2018, James Tobias received an annual
salary of approximately $104,000 plus bonuses as established by the Vice President
Incentive Plans. The bonuses were always paid out in March.
{¶ 8} The 2019 Vice President Incentive document, which is a central issue in this
appeal, was signed by James Tobias in January 2019, and the plan was scheduled to run
from January 1 through December 31, 2019. His 2019 bonus was to be $173,118 and
should have been paid out in March 2020.
{¶ 9} In February 2020, James Tobias attended a meeting about the development
of a new HVAC company to be called A-1 Mechanical. A-1 Mechanical is a direct
competitor of Airtron and operates within a 100-mile radius of Airtron’s West Chester
location where James Tobias was vice president. At trial, he affirmed that he was
considering other employment opportunities because he was concerned about the
financial status of Airtron’s “grandparent” company, Centrica.
{¶ 10} On March 25, 2020, James Tobias, along with the other Airtron vice
presidents, learned from Airtron Director Jeoffrey Morrow that the 2019 bonuses would
not be paid out in March due to financial concerns brought about by COVID-19. This
prompted the vice presidents to inquire of Morrow if their restrictive covenants would be
enforced. Morrow relayed the question via email to Jeff Fralix, an executive at Direct
Energy, Airtron’s parent company, to which Fralix responded: “Yes, will enforce non-
competes.”
{¶ 11} The evidence suggests that throughout the late winter of 2019 and early
spring of 2020, James Tobias, along with his nephew, Daniel Tobias (who was also an -5-
Airtron employee), met and communicated with A-1 Mechanical team members and
assisted with various issues related to the launch of the business, including warehouse
needs and securing bids for printers. At trial, James Tobias testified that on May 7, 2020,
he emailed Eric Salzer (a founding member of A-1 Mechanical) a photograph of Airtron’s
commission schedule and then, on or about May 13, 2020, both James and Daniel Tobias
received A-1 Mechanical email addresses.
{¶ 12} Evidence was also presented at trial that indicated that James Tobias,
before leaving his job at Airtron, began funneling potential jobs and clients from Airtron to
A-1 Mechanical. In one case, shortly after James Tobias left Airtron, a major project,
which had been bid on and awarded to Airtron, switched to A-1 Mechanical after receiving
a slightly lower estimate.
{¶ 13} In early June 2020, both James and Daniel Tobias resigned their positions
with Airtron to begin working for A-1 Mechanical. Around that same time, James Tobias
wiped his work cell phone of all data. On June 10, the day after he resigned from Airtron,
James Tobias texted prospective (and oftentimes current Airtron) customers his new
contact information at A-1 Mechanical. Further, the trial testimony and exhibits indicated
that he facilitated the hiring of a handful of employees away from Airtron.
{¶ 14} On July 20, 2020, Airtron filed its verified complaint for a temporary
restraining order and preliminary and permanent injunctive relief, as well as damages.
James Tobias and A-1 Mechanical were listed as defendants. The suit asserted the
following claims against James Tobias: breach of contract, breach of the duty of loyalty,
good faith, and fair dealing, tortious interference, and declaratory judgment. Airtron levied
claims of tortious interference and theft of trade secrets against A-1 Mechanical. That -6-
same day, the trial court granted the temporary restraining order.
{¶ 15} James Tobias filed his answer with counterclaims on July 31, 2020. He
asserted counterclaims for breach of contract, unjust enrichment, promissory estoppel,
waiver, failure of consideration, public policy violations, intentional interference with
economic interests, constructive termination, and punitive damages.
{¶ 16} A week later, Airtron amended its complaint, this time adding Daniel Tobias
as a party. Allegations of theft of trade secrets, conversion, civil conspiracy, and
fraudulent nondisclosure were also added against the defendants.
{¶ 17} On August 7, 2020, Airtron filed a motion to dismiss James Tobias’s
counterclaims, pursuant to Civ.R. 12(B)(6). The trial court sustained Airtron’s motion to
dismiss regarding the counterclaims for constructive termination, waiver, failure of
consideration, and public policy. Later in the fall of 2020, the parties filed motions for
summary judgment which were sustained in part and overruled in part. Specifically, A-1
Mechanical’s motion for summary judgment was sustained in part as to Airtron’s civil
conspiracy claim, and Daniel Tobias’s motion for summary judgment was sustained in
part as to Airtron’s claims for civil conversion and civil conspiracy.
{¶ 18} Also, in the lead up to a trial, the parties agreed to extend the temporary
restraining order through the trial court’s decision on the merits of Airtron’s injunction
request. Relatedly, the parties agreed to consolidate the hearing on the preliminary
injunction with the trial on the merits of permanent injunctive relief. The parties also
agreed that the trial, which was to be held on December 1, 2020, would be limited to the
following issues:
(1) Whether Plaintiff Airtron should be granted a permanent injunction in relation -7-
to Defendant James Tobias’s Non-Disclosure, Non-Solicitation, and Non-
Competition Agreement (“the Agreement”) with Plaintiff.
(2) Whether the Defendant James Tobias on or before April 1, 2020 was entitled
to payment from Plaintiff [Airtron] of his 2019 bonus.
(3) Whether any restrictive covenant in the Agreement was invalidated.
(4) Whether Defendant James Tobias’s alleged reliance on an oral discussion with
Airtron’s Director regarding enforcement of the restrictive covenants was
reasonable.
(5) Whether Plaintiff Airtron should be granted judgment against Defendant James
Tobias for violation of the Agreement.
(6) Whether Defendant James Tobias should be granted a judgment against the
Plaintiff for non-payment of his 2019 bonus.
{¶ 19} A few weeks before the trial, Airtron moved to strike James Tobias’s jury
demand, arguing that by entering into the Agreement, he waived that right. On November
17, 2020, the trial court sustained the motion, officially setting the proceeding as a bench
trial.
{¶ 20} The three-day bench trial began on December 1, 2020, and involved
testimony from seven witnesses, including James and Daniel Tobias. Eighty exhibits and
hundreds of pages of documents were considered by the court.
{¶ 21} On January 11, 2021, the trial court (1) entered judgment in favor of Airtron
and against James Tobias for breach of the non-disclosure agreement; (2) granted a
permanent injunction in favor of Airtron and against James Tobias to prevent him from
violating the terms of the Agreement through June 10, 2021; (3) granted judgment in favor -8-
of James Tobias on his breach of contract counterclaim against Airtron for the company’s
failure to pay his 2019 bonus, plus interest. The trial court held that damages for James
Tobias’s breach of the Agreement would be determined at a later date. In its judgment
entry, the trial court stated that its decision was a “final appealable order, and there is not
just cause for delay for purposes of Civ.R. 54.”
{¶ 22} James Tobias, Daniel Tobias, Airtron, and A-1 Mechanical all appeal the
trial court’s judgment.
II. Jurisdiction to consider James Tobias’s assignments of error
{¶ 23} James Tobias has raised three assignments of error, two of which stem
from the trial court’s conclusion that he breached the Agreement. While the trial court
determined that James Tobias had breached his contract with Airtron, it did not, as per
the agreement between the parties, determine the amount of damages owed. Rather, the
court stated that damages would be decided later in a separate proceeding. Although
none of the parties have raised this as a potential problem, we, sua sponte, take notice
of the issue.
{¶ 24} An appellate court has jurisdiction to review only final orders or judgments
of the lower courts in its district. Section 3(B)(2), Article IV, Ohio Constitution; R.C.
2505.02. We have no jurisdiction to review an order or judgment that is not final, and an
appeal therefrom must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio
St.3d 17, 20, 540 N.E.2d 266 (1989).
{¶ 25} The concept of “final orders” is based on the rationale that “the court making
an order which is not final is thereby retaining jurisdiction for further proceedings. A final
order, therefore, is one disposing of the whole case or some separate and distinct branch -9-
thereof.” Noble v. Colwell, 44 Ohio St.3d 92, 94, 540 N.E.2d 1381 (1989). If an order is
not final and appealable, then an appeals court does not have jurisdiction to review the
matter, and the appeal must be dismissed. Id.
{¶ 26} “An order which adjudicates one or more but fewer than all the claims or the
rights and liabilities of fewer than all the parties must meet the requirements of R.C.
2505.02 and Civ.R. 54(B) in order to be final and appealable.” Noble at 96; see Chef
Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus;
Jaballas v. Hastings Mut. Ins. Co., 2d Dist. Montgomery No. 28803, 2021-Ohio-737, ¶ 5.
Of relevance to Airtron’s breach of contract claim, R.C. 2505.02(B)(1) provides that “an
order is a final order * * * when it is * * * an order that affects a substantial right in an
action that in effect determines the action and prevents a judgment[.]” Civ.R. 54(B) states,
in relevant part:
When more than one claim for relief is presented in an action whether as a
claim, counterclaim, cross-claim, or third-party claim, and whether arising
out of the same or separate transactions, or when multiple parties are
involved, the court may enter final judgment as to one or more but fewer
than all of the claims or parties only upon express determination that there
is no just reason for delay.
{¶ 27} The general purpose behind Civ.R. 54(B) is to effectuate the policy against
piecemeal litigation and the potential injustice of delayed appeals in certain situations.
Noble at 96. “Rule 54(B) makes mandatory the use of the language, ‘there is no just
reason for delay.’” Id.
{¶ 28} A liability finding without a damages finding is not final and appealable -10-
where it does not “in effect determin[e] the action and preven[t] a judgment * * *.” R.C.
2505.02(B)(1). See Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-Ohio-1221, 904
N.E.2d 863, ¶ 31. “‘As a general rule, even where the issue of liability has been
determined, but a factual adjudication of relief is unresolved, the finding of liability is not
a final appealable order * * *.’ ” Id., quoting Noble at 96. “Until such time as [a party’s]
damages, if any, are determined, the court is not in a position to enter an order from which
an appeal will lie.” Frey v. Trenor Motor Co., 2d Dist. Clark No. 2907, 1992 WL 235726,
*1 (Sept. 25, 1992). See also Schlotterer v. Exempted Village School Dist., 3d Dist.
Mercer No. 10-82-2, 1983 WL 7248, *2 (Apr. 26, 1983) (order which “disposed only of
plaintiff's entitlement to reinstatement and back pay leaving the amount thereof
undetermined, * * * did not constitute a final appealable order”); Miller v. First Internatl.
Fid. & Trust Bldg., Ltd., 113 Ohio St.3d 474, 2007-Ohio-2457, 866 N.E.2d 1059, ¶ 7
(“Generally, orders determining liability [that defer] the issue of damages are not final
appealable orders under R.C. 2505.02[.]”).
{¶ 29} Airtron’s claims against James Tobias, much like the ones just cited, are
essentially only half-way decided: the trial court ruled on liability, but not damages. In fact,
it does not appear that a hearing or trial to determine damages has been scheduled.
Because Airtron’s suit against James Tobias has not been completely resolved, we do
not have jurisdiction to review the trial court’s finding of liability on Airtron’s breach of
contract claim.
{¶ 30} There is one more issue from James Tobias to be answered: whether his
remaining, unresolved tort claims are subject to a jury waiver. James Tobias argues that
the trial court erred when it ruled that issues remaining in the trial court in this bifurcated -11-
case are not subject to jury determination. The trial court made this ruling in its November
17, 2020 “Decision, Order and Entry sustaining Plaintiff Airtron, Inc.’s motion to strike jury
demand for certain claims,” not in the judgment rendered after the bench trial.
{¶ 31} As we discussed above, certain criteria must be met for an order to be final
and appealable. A final order is one “affecting a substantial right in an action which in
effect determines the action and prevents a judgment[.]” R.C. 2505.02. On the other hand,
an interlocutory order is one that relates to an intermediate matter in the case. “An order
that neither disposes of all claims between the parties nor contains an express
determination that there is no just reason for delay is an interlocutory order.” Trotwood v.
S. Cent. Constr., L.L.C., 192 Ohio App.3d 69, 2011-Ohio-237, 947 N.E.2d 1291, ¶ 57.
{¶ 32} When an order is interlocutory, it remains subject to modification by the
court unless it is certified suitable for appeal, or the action is terminated as to all claims
and parties. Id. “Once a final judgment is issued terminating a case, all interlocutory orders
are merged into the final judgment.” Lingo v. Ohio Cent. R.R., 10th Dist. Franklin No.
05AP-206, 2006-Ohio-2268, ¶ 17.
{¶ 33} The trial court’s decision as to whether James Tobias waived a jury trial on
all of his claims was interlocutory in nature. It did not dispose of any claims, nor did it
prevent any judgment. Further, the appealed Decision, Order and Entry lacked all the
language necessary to trigger our jurisdiction, and the trial court can modify its decision
on jury waiver vis-à-vis the untried causes of action. The jury waiver question, therefore,
is not properly before this court. James Tobias’s appeals will be dismissed for lack of a
final appealable order. -12-
III. Daniel Tobias’s and A-1 Mechanical’s claims
{¶ 34} Daniel Tobias and A-1 Mechanical have also appealed the trial court’s
rulings on Airtron’s breach of contract claims, both in issuing the temporary restraining
order and granting the permanent injunction against James Tobias. Specifically, they
argue that the trial court erred in finding that Airtron established by clear and convincing
evidence that it was entitled to injunctive relief. The ability to reach either of those
conclusions, though, turns on Airtron’s breach of contract claim against James Tobias.
{¶ 35} The breach of contract claim against James Tobias is not fully decided,
because the issue of damages has not yet been addressed. Until the resolution of that
claim becomes final and appealable, we do not have jurisdiction to decide if there were
errors made in the judgment against James Tobias. “[W]hen a trial court does not resolve
an entire claim, regardless of whether the order meets the requirements of Civ.R. 54(B),
the order is not final and appealable.” Ibold v. Wharton, 2017-Ohio-9388, 103 N.E.3d 101,
¶ 11 (4th Dist.).
{¶ 36} The injunction issue is not properly before us either. This conclusion is
illustrated by State ex rel. Michael DeWine Attorney General v. Big Sky Energy, 11 Dist.
Ashtabula No. 2012-A-0042, 2013-Ohio-437. In that case, the appellate court dismissed
the appeal for lack of a final, appealable order where the trial court granted a permanent
injunction to the appellee but had not yet made a determination as to damages. The
Eleventh District found that without a determination of damages, the trial court’s judgment
was not final pursuant to Civ.R. 54(B) and R.C. 2505.02, and thus, it lacked jurisdiction
to review it. Id. at ¶ 15. See also Saint-Gobain/Norton Indus. Ceramics Corp. v. Parkhurst,
11th Dist. Geauga No. 94-G-1871, 1994 WL 738730 (Dec. 30, 1994) (appeal dismissed -13-
as not final where the court’s order resolved the liability issue and granted a permanent
injunction to appellee but did not determine damages); Kinzel v. Ebner, 2020-Ohio-4165,
157 N.E.3d 898 (6th Dist.).
{¶ 37} In this case, not only are James Tobias’s appellate claims not properly
before us, neither are those of Daniel Tobias and A-1 Mechanical, which are corollaries
of those issues, as the propriety of the injunction cannot be determined without first
deciding that James Tobias breached his contract. The two are inextricably linked.
Daniel Tobias’s and A-1 Mechanical’s appeal will be dismissed for lack of a final
appealable order.
IV. Airton’s breach of contract appeal
{¶ 38} Airtron has appealed the trial court’s judgment awarding $173,118 to James
Tobias for breach of the 2019 Airtron Divisional Vice President Bonus Plan. The company
raises two assignments of error, which are essentially alternative ways to rule in its favor.
The first assignment of error is that Airtron is not a party to the contract, instead arguing
that the contract is really between James Tobias and Direct Energy (Airtron’s parent
company). The second assignment of error argues that the Bonus Plan did not create a
contractual right to payment, stressing the importance of strict interpretation of contract
construction.
{¶ 39} Airtron’s most persuasive argument is the second: that a plain reading of
the terms of the Bonus Plan leads to the conclusion that the bonus was discretionary, and
James Tobias was not eligible to receive payment after he left the company.
{¶ 40} James Tobias, on the other hand, argues that the Airtron Divisional Vice
President Bonus Plan was more akin to a contractual commitment for earned money that -14-
was paid out in March or April every year. To reach that conclusion, though, he relies on
extrinsic evidence, something that cannot be done in the current case.
{¶ 41} The construction and interpretation of a written contract is “a matter of law
that we review de novo. * * * Our primary role is to ascertain and give effect to the intent
of the parties. * * * We presume that the intent of the parties to a contract is within the
language used in the written instrument”. DiPasquale v. Costas, 186 Ohio App.3d 121,
2010-Ohio-832, 926 N.E.2d 682, ¶ 36, quoting Saunders v. Mortensen, 101 Ohio St.3d
86, 2004-Ohio-24, 801 N.E.2d 452.
{¶ 42} “If a contract is clear and unambiguous, then its interpretation is a matter of
law and there is no issue of fact to be determined.” State ex rel. Parsons v. Fleming, 68
Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994), citing Davis v. Loopco Industries., Inc., 66
Ohio St.3d 64, 66, 609 N.E.2d 177 (1993). In those situations, the reviewing court will
give effect to the contract as written. The court will “determine the contract’s meaning
from the language alone, without reference to extrinsic facts or aids.” 11 Williston on
Contracts § 30:6 (4th ed.). See also World Harvest Church v. Grange Mut. Cas. Co., 148
Ohio St.3d 11, 2016-Ohio-2913, 68 N.E.3d 738, ¶ 28 (when contract terms are clear and
unambiguous on their face, the court does not need to look beyond the plain language to
determine the obligations and rights of the parties). “[A] court may not go beyond the plain
language of the agreement to determine the parties’ rights and obligations[.]” PNC Bank,
N.A. v. Springboro Med. Arts. Inc., 2d Dist. Montgomery No. 26408, 2015-Ohio-3386,
¶ 16.
{¶ 43} In this case, the plain language of the 2019 Airtron Divisional Vice President
Bonus Plan states that the bonus is discretionary and that James Tobias disqualified -15-
himself from payment by leaving the company. We will highlight the contract sections that
elucidate the conclusion.
{¶ 44} The “Eligibility” clause is the first section that points to Tobias’s being
ineligible to be paid the bonus. The contract states, “To be eligible for a payment under
the Plan, the Participant must be actively employed by the Company in a position eligible
under this Plan at the time payments are made. This is an express condition of eligibility.”
(Emphasis added.) Bonus Plan at 3. It is uncontested that when the 2019 bonuses were
paid in October 2020, James Tobias was not employed by Airtron, having left the
company some four months earlier.
{¶ 45} James Tobias, leaving Airtron in June 2020, would also be disqualified
under the “Termination or Transfer” clause. This section states: “If a Participant transfers,
resigns, or his/her employment is terminated with or without cause prior to distribution of
a bonus payment, the Participant forfeits any bonus payments earned as of the time of
the termination. * * * Eligible participants under the plan must be actively employed at the
time payments are made[.]” (Emphasis added.) Bonus Plan at 4. According to the plain
language of the contract, James Tobias was ineligible because he was no longer an
Airtron employee when the payments were made.
{¶ 46} The contract also stated that receiving a bonus was at the discretion of the
company, and the plan could be altered or ended at any time. The “General Information”
clause establishes that “[t]he Plan, and any payment arising from it, is at the discretion of
Direct Energy (“DE).” Bonus Plan at 3. The “General Information” clause also expressed
that the bonus plan could be changed or eliminated, unilaterally, without notice and that
“[c]ompensation under this Plan is not contractually guaranteed and remains at all times -16-
discretionary with the Company.” Bonus Plan at 3.
{¶ 47} The trial court found, and James Tobias now argues, that the Airtron
Divisional Vice President Bonus Plan was not discretionary, but was an earned part of an
Airtron vice president’s compensation package. He contends that the bonus should have
been considered payment owed for work performed in 2019, and that it was previously
paid out in March 2014, 2015, 2016, 2017 and 2018, so the bonus was earned as of
March 2020. The problem with that conclusion is that to reach it, you must use evidence
outside the contract (in this case, in the form of testimony from other executives and
exhibits), something that is not permitted when the terms are unambiguous. See Sunoco,
Inc. v. Toledo Edison Co., 129 Ohio St.3d 397, 2011-Ohio-2720, 953 N.E.2d 285, ¶ 37
(when a written contract is clear, a court cannot look outside the writing to find the intent
of the parties); Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246, 274 N.E.2d
(1978) (“When the terms in a contract are unambiguous, courts cannot in effect create a
new contract by finding an intent not expressed in the clear language employed by the
parties.”).
{¶ 48} James Tobias, in his brief, states that the present case “reflects the nexus
between a court’s responsibility as a court expounding the law and the court’s
responsibility as a court applying equitable concepts.” Tobias brief at 19-20. While there
could conceivably be scenarios in which an appellate court would wade into equitable
waters, it is not the responsibility of this court to “rewrite the parties’ contract in order to
provide for a more equitable result.” Hope Academy Broadway Campus v. White Hat Mgt.,
L.L.C., 145 Ohio St.3d 29, 2015-Ohio-3716, 46 N.E.3d 665, ¶ 36-37. It is the duty of the
parties to reflect the equities that they want. Ensuring contractual fairness between -17-
sophisticated parties must be done during the drafting process. Once the document is
completed, we are bound to interpret the terms and conditions that are memorialized.
{¶ 49} The terms of the 2019 Airtron Divisional Vice President Bonus Plan indicate
that the bonus was discretionary and that to be eligible for it, James Tobias, or any other
vice president, must have been employed by Airtron at the time the sum was paid out.
Because the terms of the contract were unambiguous, it was error for the trial court to
look outside the four corners of the contract. Airtron’s assignment of error is sustained.
V. Conclusion
{¶ 50} The trial court’s judgment in favor of Airtron, ruling that James Tobias
breached his non-disclosure, non-competition, non-solicitation agreement, was not a final
appealable order because damages must still be decided. Similarly, the trial court’s order
regarding James Tobias’s right to a jury trial was not final or appealable and remains
interlocutory. James Tobias’s appeal will be dismissed for lack of a final appealable order.
{¶ 51} Because Daniel Tobias’s and A-1 Mechanical’s appeal is also based on the
trial court’s ruling on Airtron’s claim for breach of contract against James Tobias, their
appeal will also be dismissed for lack of a final appealable order.
{¶ 52} The trial court erred by finding that Airtron owed James Tobias a bonus of
$173,118. The unambiguous terms of the contract demonstrate that the bonus was
discretionary and that because he was not employed by Airtron at the time the bonus was
eventually paid out, he was ineligible. The trial court’s judgment in favor of James Tobias
on his breach of contract claim will be reversed.
TUCKER, P. J. and WELBAUM, J., concur. -18-
Copies sent to:
Stephen A. Weigand D. Jeffrey Ireland David C. Greer James H. Greer Kevin C. Quinlan Thomas M. Green Hon. Mary Katherine Huffman