[Cite as Reliant Serv. MJF, L.L.C. v. Brown, 2025-Ohio-5364.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
RELIANT SERVICES MJF, LLC, :
Appellant and Cross-Appellee, : CASE NO. CA2024-11-081
: OPINION AND - vs - JUDGMENT ENTRY : 12/1/2025
PAUL BROWN, :
Appellee and Cross-Appellant. :
CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 22CV095017
Cooper Elliott, and Jeffrey T. Kenney, for appellant and cross-appellee.
Thomas G. Eagle, for appellee and cross-appellant.
___________ OPINION
M. POWELL, J.
{¶ 1} Appellant, Reliant Services MJF, LLC (Reliant), appeals a decision of the
Warren County Court of Common Pleas granting judgment in favor of appellee, Paul Warren CA2024-11-081
Brown, on Reliant's claim for breach of contract.1 Brown cross-appeals the trial court's
decision granting summary judgment in favor of Reliant on Brown's counterclaims for
abuse of process and tortious interference with a contract and business relationship.
Brown is an independent contractor who formerly performed work for Reliant.
{¶ 2} Reliant is a construction staffing company that specializes in providing
punch-list services to home builders. Punch-list services is the process of completing
finishing work on newly constructed homes, including drywall repairs, paint touchups, and
door adjustments. Reliant retains independent contractors to perform the punch-list
services for its home-builder clients. Reliant's main client is Ryan Homes. As pertinent
here, Reliant contracted with Ryan Homes for work, and then selected one or more of its
independent contractors to perform the requested work. Ryan Homes would then tell the
independent contractors where to go and what punch-list tasks to perform.
{¶ 3} To protect its business and prevent its independent contractors from
competing directly with Reliant or performing punch-list services directly for home
builders, Reliant requires its independent contractors to sign noncompete covenants. The
record shows that Reliant originally used a "Non Compete Form." However, after the Non
Compete Form was found unenforceable by a Hamilton County court in 2017, Reliant
adopted a new Independent Contractor Agreement that includes noncompetition and
nonsolicitation clauses.
{¶ 4} Brown began working as one of Reliant's punch-list independent
contractors in May 2013. Prior to that, Brown had worked as a handyman for residential
property owners for 25 years, providing handyman and punch-list services. On May 16,
1. Reliant was originally founded by Michael Meyer under the name Reliant Services MM, LLC. The company's name changed to Reliant Services MJF, LLC when Matthew John Fenik purchased it in 2021. For purposes of this appeal, both entities refer to the same company and will be referred to as Reliant. -2- Warren CA2024-11-081
2013, Brown signed the Non Compete Form, which provided, "This form states that Paul
Brown will not compete nor solicit, seek, or directly enter into contracts with Ryan Homes,
Drees Homes or any customers established into a subcontractor agreement with Reliant
Services LLC." Brown also signed an Independent Contractor Agreement for Services
(the "Contract") which was back-dated to May 16, 2013. The Contract's noncompete
clause provided that in light of "the highly competitive nature of" Reliant's business, Brown
agreed he would not compete with Reliant while working as a Reliant independent
contractor or for a period of one year after termination of his status as a Reliant
independent contractor. Matthew Fenik acquired Reliant in October 2021. The acquisition
included Reliant's various agreements with its independent contractors, including Brown's
Contract and Non Compete Form .
{¶ 5} In September 2021 and while still working for Reliant, Brown formed his own
company, Brown Building Services, LLC ("BBS"). BBS provided the same punch-list
services that Brown performed for Ryan Homes on behalf of Reliant. The following month,
Brown obtained a vendor's license with Ryan Homes. Thereafter, while still working as a
Reliant independent contractor, Brown and his company began providing punch-list
services for Ryan Homes. Brown's association with Reliant terminated in October 2021.
Reliant discovered that BBS was providing punch-list services for Ryan Homes and
confronted Brown. Brown denied he was competing with Reliant. Subsequently, Reliant
hired an investigator who confirmed that Brown was providing punch-list services for Ryan
Homes.
{¶ 6} On March 25, 2022, Reliant filed a complaint against Brown for breach of
contract. Attached to the complaint were the 2013 Contract and Non Compete Form.
Reliant requested a temporary restraining order ("TRO") and a preliminary injunction
against Brown. On March 28, 2022, a magistrate conducted a hearing on Reliant's TRO
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motion. Brown was present at the hearing but was not represented by counsel. The
magistrate granted a TRO subject to Reliant posting a $1,000 bond pursuant to Civ.R.
65(C). Brown made no objection to the bond. Among other things, the TRO enjoined
Brown from "directly or indirectly engaging in any competitive business with [Reliant]
within 100 miles of Cincinnati, Ohio."
{¶ 7} A hearing on Reliant's motion for a preliminary injunction was held on April
26, 2022. The magistrate heard testimony from Brown, Fenik (Reliant's sole managing
partner), and Mark Maier (general manager for NVR, Inc., dba Ryan Homes). During the
hearing, Reliant introduced Exhibit 8, consisting of the Contract, the Non Compete Form,
and a W-9 form. The Contract was an eight-page document and missing its page four.
Brown admitted signing the Non Compete Form. Brown acknowledged his signature was
on the last page of the Contract and that he signed that page because he was told to do
so by Reliant's prior owner, but denied any recollection of having previously seen the
actual whole Contract. Brown suggested his signature had been forged or superimposed
upon the signature line. Brown also pointed out that his address on the Contract reflected
where he lived after March 26, 2014, however, he did not reside at that address on May
16, 2013, the date on the Contract.
{¶ 8} Fenik testified that Brown's Contract was among the electronic documents
he obtained from Reliant's prior owner when he acquired Reliant in October 2021, and
identified the Contract as part of Exhibit 8. Fenik testified that he referenced Brown's
Contract when he confronted Brown about his working directly with Ryan Homes in
competition with Reliant and that Brown acknowledged its existence. Fenik also testified
that his understanding was that the Contract's noncompete clause was a revision of the
Non Compete Form that was implemented after the Non Compete Form was challenged
in court and found unenforceable.
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{¶ 9} Mark Maier, Ryan Homes' general manager, testified that Ryan Homes'
direct relationship with Brown had no effect on the amount of work for which Ryan Homes
contracts with Reliant.
{¶ 10} Brown objected to the admission of the Contract included in Exhibit 8 on the
grounds it was a copy and not the original contract (citing Evid. R. 1002 and 1003), it was
incomplete (missing its page four), and it was back-dated. The magistrate deferred ruling
on the admissibility of Exhibit 8, subject to Reliant producing Brown's original Contract
within seven days. On April 26, 2022, the magistrate journalized an order stating that
Reliant "shall have until close of business on May 3, 2022 to provide notice to this court
and defense counsel whether the original copy of the 'Independent Contractor Agreement
for Services' at issue in this matter can be located. If the original can be found, such
original shall be provided to the Court as a substitution for Plaintiff's Exhibit 8 and a copy
of the original shall be provided to Defense counsel." The magistrate's order further
modified the TRO, thereby enjoining Brown from only directly or indirectly engaging in
business "with Ryan Homes. [Brown] may otherwise perform services for any other
companies, organizations, entities, etc." Brown did not file a motion to set aside the
magistrate's order pursuant to Civ.R. 53(D).
{¶ 11} On April 27, 2022, during the pendency of the magistrate's decision on the
motion for preliminary injunction, Brown answered Reliant's complaint and
counterclaimed, alleging abuse of process and tortious interference with a contract and
business relationship.
{¶ 12} On May 2, 2022, Reliant filed a Notice of Compliance that included the
original Non Compete Form and the complete original Contract. The notice was
accompanied by affidavits from Fenik and Mark Meyer, Reliant's prior owner. Meyer
averred that the Contract was implemented sometime after 2017 when the Hamilton
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County Common Pleas Court ruled that the Non Compete Form was unenforceable.
Thereafter, Meyer required Reliant's independent contractors to sign the Contract. Meyer
further averred that he witnessed Brown sign the Contract and that he advised him it
would be back-dated to May 16, 2013, the day Brown originally contracted with Reliant.
Fenik's affidavit merely recited his testimony during the preliminary injunction hearing
regarding his acquisition of Reliant, which included Brown's Contract. A copy of Brown's
original Contract was attached to Fenik's affidavit as an exhibit and identified. Brown filed
objections to the Fenik and Meyer affidavits, arguing they were testimonial in nature, were
not subject to cross-examination, and were inadmissible hearsay.
{¶ 13} On May 6, 2022, the magistrate issued a decision granting Reliant's motion
for a preliminary injunction. Addressing the admissibility of Brown's Contract, the
magistrate held that Meyer's affidavit would not be considered because he was not a
witness at the preliminary injunction hearing and therefore, was not subject to cross-
examination. However, the magistrate considered Fenik's affidavit as he was a witness
at the hearing subject to cross-examination. The magistrate ruled that Brown's original
Contract would be supplemented into the record. The magistrate further observed, "all
parties appear to agree the 'Non Compete Form' is not a binding or enforceable covenant
not to compete and is, therefore, irrelevant to these proceedings but for the fact it was
originally provided to and signed by [Brown] on or about May 16, 2013." The preliminary
injunction issued by the magistrate included an order enjoining Brown "from directly or
indirectly engaging in any competitive business with [Reliant] with the construction
company known as Ryan Homes."
{¶ 14} Brown filed objections to the magistrate's decision granting Reliant a
preliminary injunction. Brown also objected to the magistrate's consideration of Fenik's
affidavit and the substitution of the original Contract for Exhibit 8. On December 12, 2022,
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the trial court dissolved the preliminary injunction, finding that Reliant had "not met the
burden of clear and convincing evidence necessary to justify an injunction" because
"[n]othing in the evidence presented to date indicates any harm is irreparable." The trial
court did not address the admissibility of the Contract or Fenik's affidavit.
{¶ 15} Reliant subsequently moved for summary judgment on Brown's
counterclaims. On April 1, 2024, the magistrate granted Reliant's motion and dismissed
Brown's counterclaims for abuse of process and tortious interference with a contract and
business relationship. Brown filed objections to the magistrate's decision. On May 20,
2024, the trial court overruled Brown's objections and adopted the magistrate's April 1,
2024 decision as the court's order.
{¶ 16} A bench trial on Reliant's breach-of-contract claim was held before the
magistrate on July 9, 2024. At the outset of the trial, the magistrate noted that the parties
had agreed that the transcript of the preliminary injunction hearing and the exhibits
admitted during that hearing, subject to pending objections, would be considered for
purposes of the trial. Brown renewed his objection to the Contract. Over Brown's
objection, the Contract was admitted into evidence.
{¶ 17} On August 12, 2024, the magistrate issued a decision dismissing Reliant's
breach-of-contract claim and granting judgment in favor of Brown. The magistrate found
that the Contract's noncompete clause was unenforceable because it placed an undue
hardship on Brown. The magistrate also found that the lack of geographical limitations in
the noncompete clause made it unduly restrictive. Moreover, there was no evidence that
Brown learned his trade through Reliant or that Reliant's proprietary information or trade
secrets were implicated by the punch-list services Brown performed through BBS.
{¶ 18} Reliant and Brown each filed objections to the magistrate's decision.
Reliant's objections centered on the 2013 Non Compete Form, arguing it was enforceable
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because it only sought to limit Brown from working for Ryan Homes. Brown's objection
centered on the Contract, challenging its admission into evidence, and on whether he
was entitled to damages for losses incurred while he was prohibited from working during
the time the TRO and preliminary injunction were in effect.
{¶ 19} On October 29, 2024, the trial court overruled both parties' objections and
adopted the magistrate's decision as follows: "judgment is hereby rendered in favor of
[Brown] on [Reliant's] sole cause of action for breach of contract. [Reliant's] claim is
dismissed on the merits and [Brown] is entitled to release of the $1,000 bond posted by
[Reliant] under Civ.R. 65(C)."
{¶ 20} Reliant Services now appeals, raising one assignment of error. Brown
cross-appeals, raising two cross-assignments of error.
{¶ 21} Reliant's Assignment of Error No. 1:
THE TRIAL COURT ERRED BY NOT ENFORCING THE VALID NON-COMPETE AGREEMENT BETWEEN THE APPELLANT AND THE APPELLEE.
{¶ 22} Reliant challenges the trial court's dismissal of its breach-of-contract claim,
arguing the court erred in finding that its noncompete agreement places an undue
hardship on a former independent contractor and is, therefore, unenforceable. Reliant
asserts that its noncompete agreement is very limited in scope because it only seeks to
prevent Brown from directly working for Ryan Homes.
{¶ 23} Brown challenges the validity of the Contract's noncompete clause.
Although Reliant's complaint included as Exhibit A the Contract and the Non Compete
Form as though the two were a single document, and again submitted the two documents
as Exhibit 8 at the preliminary injunction hearing as though they were Reliant's sole
noncompete covenant, the record revealed that the Contract and the Non Compete Form
were signed separately and years apart.
-8- Warren CA2024-11-081
{¶ 24} In her August 12, 2024 post-bench trial decision, the magistrate found that
"the Contract, which was an updated noncompete clause from the 'Non Compete Form'
was not signed on the same date as the 'Non Compete Form' and was likely backdated
from someone at Reliant Services." Based upon the foregoing, the magistrate considered
only the Contract in analyzing whether Reliant's noncompete covenant was enforceable.
Although Reliant filed objections to the magistrate's decision, it did not specifically object
to this finding by the magistrate. Reliant has therefore waived any appeal as to this finding
other than a claim of plain error. Reliant does not claim plain error. See Civ.R.
53(D)(3)(b)(iv); Marck v. Partin, 2024-Ohio-4829 (12th Dist.). In its decision overruling
Reliant's objections to the magistrate's decision, the trial court acknowledged there were
two noncompete clauses at issue in this case, but "decline[d] to read the 'Non Compete
Form' in conjunction with the [Contract] to limit the noncompete clause to Ryan Homes,"
in part because "there is no indication in the documents that they should be read in
conjunction with each other" and "the parties acknowledged at the preliminary injunction
hearing that the 'Non Compete Form' was not a valid noncompete clause and was
replaced by the [Contract]." Reliant did not assign as error on appeal the trial court's
finding that the Non Compete Form was not a valid noncompete clause and that it had
been replaced with the Contract's noncompete clause. We will therefore only address the
enforceability of the Contract's noncompete clause.
{¶ 25} The Contract's noncompete clause provides that, for one year after
termination, an individual working for Reliant shall not engage in any competitive business
("defined as any Customer of Company as they presently exist or as may be in existence
or development of the date of termination of my retention with the Company"), assist
others in engaging in any competitive business, or induce any employees or other
independent contractors of Reliant to terminate their employment with Reliant and/or
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engage in any competitive business.
{¶ 26} The magistrate found that the clause was unduly restrictive because it
contained no geographic specifications. The magistrate further found "there was no
evidence presented that [Brown] learned his trade through Reliant or that the punch-out
work involved trade secrets that [Brown] learned and could potentially share with a new
employer to the detriment of Reliant." Based upon the foregoing, the magistrate found
that the noncompete clause placed an undue hardship on Brown and was therefore
unenforceable. The trial court likewise found that the Contract's noncompete clause was
unenforceable because it had "no geographic limitations and no limitation to only address
Ryan Homes."
{¶ 27} As a general rule, restrictive covenants not to compete are disfavored by
the law. Willis Refrig., Air Conditioning & Heating v. Maynard, 2000 Ohio App. LEXIS 940,
*19 (12th Dist. Jan. 18, 2000). On the other hand, though "cautiously considered and
carefully scrutinized," Ohio courts have long recognized the validity of noncompete
agreements if they contain reasonable geographical and temporal restrictions. Lake Land
Emp. Group of Akron, LLC v. Columber, 2004-Ohio-786, ¶ 7-9. Thus, a noncompete
covenant will be enforced if "reasonable." Raimonde v. Van Vlerah, 42 Ohio St.2d 21, 25
(1975).
{¶ 28} A noncompete covenant is reasonable if (1) its restrictions are not greater
than what is required to protect the employer, (2) it does not impose an undue hardship
on the employee, and (3) it is not injurious to the public. Id. at 26. In determining the
validity of a noncompete covenant, each case must be decided on its own facts. Id. at 25.
A plaintiff seeking to enforce a noncompete covenant must establish, by clear and
convincing evidence, each of the three elements above. Total Quality Logistics, L.L.C. v.
BBI Logistics, L.L.C., 2024-Ohio-2597, ¶ 33 (12th Dist.).
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{¶ 29} In determining whether a noncompete covenant is reasonable, a court
should consider the following factors: (1) the absence or presence of limitations as to time
and space, (2) whether the employee represents the sole contact with the customer, (3)
whether the employee is possessed with confidential information or trade secrets, (4)
whether the covenant seeks to eliminate competition which would be unfair to the
employer or merely seeks to eliminate ordinary competition, (5) whether the covenant
seeks to stifle the inherent skill and experience of the employee, (6) whether the benefit
to the employer is disproportional to the detriment to the employee, (7) whether the
covenant operates as a bar to the employee's sole means of support, (8) whether the
employee's talent which the employer seeks to suppress was actually developed during
the period of employment, and (9) whether the forbidden employment is merely incidental
to the main employment. Raimonde, 42 Ohio St.2d at 25.
{¶ 30} Keeping the foregoing factors in mind, we conclude that the restraints and
resultant hardship on Brown do exceed that which is reasonable to protect Reliant's
legitimate business interests. The Contract's noncompete clause is a statewide, if not
worldwide, limitation from employment with any of Reliant's home-builder clients for a
period of one year. A one-year time period for a noncompete covenant is generally
reasonable. Kyrkos v. Superior Beverage Group, Ltd., 2013-Ohio-4597, ¶ 21 (8th Dist.).
However, in the circumstances of this case, where Brown only performed work for
Reliant's client, Ryan Homes, in Ohio's four southwest counties, the lack of any
geographic limitations makes the noncompete clause unduly restrictive. Professional
Investigations & Consulting Agency, Inc. v. Kingsland, 69 Ohio App.3d 753, 760 (10th
Dist. 1990); Evans v. Duracote Corp., 13 Ohio App.2d 63 (11th Dist. 1968). Thus, the
first Raimonde factor weighs against enforcing the Contract's noncompete clause.
{¶ 31} An employer's legitimate interests in utilizing a noncompete covenant
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include "prevent[ing] the disclosure of a former employer's trade secrets or the use of the
former employer's proprietary customer information to solicit the former employer's
customers." BBI Logistics, 2024-Ohio-2597, at ¶ 29 (12th Dist.). Another legitimate
purpose of a noncompete covenant is the retention of employees in which an employer
has invested time and other resources. Total Quality Logistics, L.L.C. v. Leonard, 2023-
Ohio-2271, ¶ 27 (12th Dist.). However, this case did not implicate trade secrets or
confidential information. Moreover, the record plainly shows that Reliant did not invest
time and money in training Brown, and did not play any role in Brown's development as
a skilled and professional punch-list contractor. Rather, Brown worked as a handyman
providing handyman and punch-list services for 25 years prior to his employment with
Reliant. Stated differently, Brown's knowledge and skills were not developed or improved
while he was a Reliant independent contractor. Noncompete covenants that prevent an
employee from using his or her general skills and experience in the marketplace weigh
against enforcement. Kyrkos at ¶ 25 (8th Dist.). In addition, while the record indicates
Brown dealt directly with Ryan Homes in scheduling work as a Reliant independent
contractor, he was not the sole contact with Ryan Homes. Thus, the second, third, and
eighth Raimonde factors weigh against enforcing the Contract's noncompete clause.
{¶ 32} Despite an employer's interests, enforcement of a noncompete covenant
cannot cause undue hardship on a former employee. BBI Logistics at ¶ 31 (12th Dist.).
"To be sure, any person who is prevented from practicing his profession or trade for a
period of time in an area in which it has been practiced, suffers some hardship. However,
the Raimonde test requires more than just some hardship." AK Steel Corp. v. Arcelormittal
USA, L.L.C., 2016-Ohio-3285, ¶ 19 (12th Dist.). "The public's interest in determining the
reasonableness of a noncompete [covenant] 'is primarily concerned with . . . promoting
fair business competition.'" BBI Logistics at ¶ 32. In highly competitive industries,
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enforcement of noncompete covenants are often found to not adversely affect the industry
or harm the public in limiting the public's options in obtaining goods and services. Id.
{¶ 33} Brown is providing the same type of punch-list services for Ryan Homes
now as he did for it when he worked as a Reliant independent contractor. The forbidden
employment is therefore not merely incidental to the main employment under the ninth
Raimonde factor. Although the Contract's noncompete clause prevents Brown from
working for or with Reliant's home-builder clients for a period of one year, it does not act
as a complete bar to his sole means of support or stifle his inherent skills and experience.
Fenik testified that Reliant does not prevent current and former independent contractors
from providing general handyman services or landscaping to residential property owners
or from working in commercial construction. Fenik stated that many individuals working
for Reliant, in fact, do side work on the weekends or if they have an opening in their work
schedule. Brown's testimony revealed that during the nine months the preliminary
injunction was in effect, he did not seek any alternative handyman employment or work
in commercial construction. Moreover, although the record shows Brown worked mostly,
if not exclusively, for Ryan Homes as a Reliant independent contractor, he never inquired
of Reliant if he could work for its other home-builder clients during the nine-month
preliminary injunction. The Raimonde test requires more than just some hardship. Brown
did not show that he could not readily obtain a position or establish a non-competing
practice. Wall v. Firelands Radiology, Inc., 106 Ohio App.3d 313, 333 (6th Dist. 1995).
Thus, the fifth and seventh Raimonde factors weigh in favor of enforcing the Contract's
noncompete clause. See BBI Logistics, 2024-Ohio-2597, at ¶ 39 (12th Dist.).
{¶ 34} While the public interest is served by robust competition between
companies, a company such as Reliant still has an interest in preventing unfair
competition. The record shows that skilled and reliable punch-list independent contractors
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such as Brown are highly sought out and challenging to find. Brown did not work for Ryan
Homes and was not acquainted with its executives during the 25 years he worked as an
independent handyman prior to working for Reliant as an independent contractor. Thus,
Brown took advantage of the relationship he formed with Ryan Homes while a Reliant
independent contractor to leverage an independent business relationship with Ryan
Homes. Nevertheless, the Contract's noncompete clause seeks to eliminate or limit
merely ordinary competition, as opposed to competition unfair to Reliant, because it is
defined so broadly that it prohibits Brown from working for any competitor, including
competitors performing work that is unrelated to Brown's work for Reliant. Thus, the fourth
Raimonde factor weighs against enforcing the Contract's noncompete clause.
{¶ 35} As for whether the benefit to Reliant is disproportional to the detriment of
Brown, the record shows that Reliant's amount of business with Ryan Homes did not
change, let alone decline, as a result of Brown's direct work for Ryan Homes. In that
respect, Reliant suffered no detriment. By contrast, Brown suffered a detriment in that he
derived significant income from directly working for Ryan Homes prior to the preliminary
injunction. Reliant claims it proved it suffered $12,668.25 in damages, which represent
30 percent of the $42,227.50 Brown earned working directly for Ryan Homes between
October 30, 2021, and March 27, 2022 (based upon Fenik's testimony that Reliant
generally received 30 percent of all amounts billed to Ryan Homes for punch-list
services). However, there is no evidence this business would have gone to Reliant. As
stated, the record shows that Reliant continued to get the same amount of business from
Ryan Homes as it did before Brown's departure. Thus, Reliant did not establish it was
damaged and the sixth Raimonde factor weighs against enforcing the Contract's
noncompete clause.
{¶ 36} In conclusion, we find the facts of this case applied to the Raimonde factors
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support the unreasonableness of the Contract's noncompete clause. The trial court,
therefore, did not err in finding that the Contract's noncompete clause is unenforceable
and in dismissing Reliant's breach-of-contract claim.
{¶ 37} Reliant's first assignment of error is overruled.
{¶ 38} Brown's Cross-Assignment of Error No. 1:
THE TRIAL COURT ERRED IN NOT AWARDING BROWN LOSSES DURING THE WRONGFUL INJUNCTION.
{¶ 39} Brown argues that the trial court erred in determining he was only entitled
to the $1,000 bond Reliant posted as a result of the wrongful issuance of the preliminary
injunction. Brown asserts he is entitled to the loss of income he incurred ($115,000) when
he did not work during the time period between the March 27, 2022 issuance of the
temporary restraining order and the December 12, 2022 dissolution of the preliminary
injunction, as expressly provided by Civ.R. 65(C). In support of his argument, Brown cites
Beres v. Hope Homes, Inc., 1983 Ohio App. LEXIS 14938 (9th Dist. Apr. 27, 1983), and
Sheets v. Chittum, 90 Ohio App. 341 (10th Dist. 1951).
{¶ 40} Civ.R. 65(C) provides in part,
No temporary restraining order or preliminary injunction is operative until the party obtaining it gives a bond executed by sufficient surety, … in an amount fixed by the court or judge allowing it, to secure to the party enjoined the damages he may sustain, if it is finally decided that the order or injunction should not have been granted.
{¶ 41} The amount of the bond is determined by the trial court, and the trial court
may set a bond at any amount. Metzger-Gleisinger Mechanical, Inc. v. Mansfield City
School Dist., 2005-Ohio-2727, ¶ 23 (5th Dist.). The bond is required to compensate the
party being enjoined should it be found the injunction was improperly granted. Id. at ¶ 22.
However, the enjoined party is only entitled to recover the amount of its provable damages
up to the amount of the bond. Kyrkos, 2013-Ohio-4597, at ¶ 30 (8th Dist.); Kingsland, 69
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Ohio App.3d at 762.
{¶ 42} Civ.R. 65(C) permits the enjoined party to move the court to increase the
bond, "[b]efore judgment, upon reasonable notice to the party who obtained [the]
injunction." At the conclusion of the preliminary injunction hearing, Brown's counsel
moved the trial court to increase the bond, but presented no evidence in support of his
request and did not suggest an amount. The court denied the request, stating, "I'm not
going to increase the bond at this time." The court then advised the parties that the TRO
would be modified to enjoin Brown from working only for Ryan Homes, and that "[i]f there's
anyone else that he wants to work with, that's fine in any geographical area at all. I'm just
going to narrow it down to Ryan Homes at this point." That same day, the court issued an
order reflecting the modification of the TRO. Thereafter, Brown never raised the bond
issue again. Although he could have filed a motion pursuant to Civ.R. 65(C) to increase
the bond and present the trial court with evidence quantifying his claimed loss of income,
he did not.
{¶ 43} The cases cited by Brown as authority that an enjoined party can recover
damages beyond a posted bond amount are not applicable here. Contrary to Brown's
suggestion, the cases do not explicitly hold that damages beyond the posted bond
amount are generally available, or that damages for a wrongfully issued injunction are not
limited to the security posted pursuant to Civ.R. 65(C). In addition, the cases do not
involve a scenario in which an enjoined party was awarded damages for a wrongfully
issued injunction over the posted security amount.
{¶ 44} In light of the foregoing, Brown's damages are limited to the amount of the
posted bond–1,000, and the trial court did not err in determining he was only entitled to
the posted bond as a result of the wrongful issuance of the preliminary injunction. Kyrkos,
2013-Ohio-4597, at ¶ 30 (8th Dist.); Kingsland, 69 Ohio App.3d at 762. Brown's first cross-
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assignment of error is overruled.
{¶ 45} Brown's Cross-Assignment of Error No. 2:
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT DISMISSING BROWN'S COUNTERCLAIMS.
{¶ 46} Brown argues the trial court erred in granting summary judgment to Reliant
on his counterclaims for abuse of process and tortious interference with a contract and
{¶ 47} Summary judgment is proper when (1) there is no genuine issue of any
material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) the
evidence submitted can only lead reasonable minds to a conclusion which is adverse to
the nonmoving party, construing the evidence most strongly in that party's favor. Civ.R.
56(C); Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). The moving
party bears the initial burden of informing the court of the basis for the motion and
demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 1996-
Ohio-107, ¶ 17. Once this burden is met, the nonmoving party has a reciprocal burden to
set forth specific facts showing there is some genuine issue of material fact yet remaining
for the trial court to resolve. Id. The nonmoving party may not rest upon the mere
allegations or denials of the pleadings, but must supply evidentiary materials setting forth
specific facts that demonstrate there is a genuine issue for trial. Civ.R. 56(E); Puhl v. U.S.
Bank, N.A., 2015-Ohio-2083, ¶ 13 (12th Dist.). Summary judgment is proper if the
nonmoving party fails to set forth such facts. Id.
{¶ 48} In determining whether a genuine issue of material fact exists, the court
must answer the following inquiry: "Does the evidence present a sufficient disagreement
to require submission to a jury or is it so one-sided that one party must prevail as a matter
of law?" Palmer v. Mossbarger, 2015-Ohio-231, ¶ 13 (12th Dist.).
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{¶ 49} An appellate court reviews a trial court's decision on a motion for summary
judgment de novo, independently and without deference to the decision of the trial court.
Paramount Farms Intl., L.L.C. v. Ventilex B.V., 2016-Ohio-1150, ¶ 16 (12th Dist.).
Tortious Interference with a Contract or Business Relationship
{¶ 50} Brown argues the trial court erred in granting summary judgment to Reliant
on his tortious interference counterclaims. Brown asserts it is "undisputed [he] and Ryan
Homes had a business relationship by their contract for handyman services that Reliant
stopped by use of what was ultimately determined to be an improper resort to injunctive
relief."
{¶ 51} "The torts of interference with business relationships and contract rights
generally occur when a person, without a privilege to do so, induces or otherwise
purposely causes a third person not to enter into or continue a business relation with
another, or not to perform a contract with another." A & B-Abell Elevator Co. v.
Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 1995-Ohio-66, ¶ 49. "'The
elements essential to recovery for a tortious interference with a business relationship are:
(1) a business relationship; (2) the wrongdoer's knowledge thereof; (3) an intentional
interference causing a breach or termination of the relationship; and (4) damages
resulting therefrom.'" Ginn v. Stonecreek Dental Care, 2015-Ohio-1600, ¶ 11 (12th Dist.),
quoting Wolf v. McCullough-Hyde Mem. Hosp., 67 Ohio App.3d 349, 355 (12th Dist.
1990).
{¶ 52} In contrast, the elements of tortious interference with a contract are "'(1) the
existence of a contract, (2) the wrongdoer's knowledge of the contract, (3) the
wrongdoer's intentional procurement of the contract's breach, (4) the lack of justification,
and (5) resulting damages.'" Ginn at ¶ 12, quoting Fred Siegel Co., L.P.A. v. Arter &
Hadden, 1999-Ohio-260, ¶ 18. To prevail, a party must demonstrate that the wrongdoer
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intentionally and improperly interfered with the party's contractual relations with another.
Total Quality Logistics, L.L.C. v. All Shippers, Inc., 2021-Ohio-781, ¶ 78 (12th Dist.).
{¶ 53} "The tort of interference with contract is based on the principle that one who,
without privilege to do so, induces or otherwise purposefully causes a third person not to
perform a contract with another is liable to the other for any of the harm caused." Egypt,
Inc. v. Akron Bd. of Edn., 1990 Ohio App. LEXIS 5675, *4 (9th Dist. Dec. 19, 1990). "If no
contract existed between the plaintiff and a third party at the time when the defendant
allegedly interfered, the plaintiff's claim for intentional interference with a contract must
fail as a matter of law." Magnum Steel & Trading, L.L.C. v. Mink, 2013-Ohio-2431, ¶ 10
(9th Dist.). In other words, a contract must exist. Here, Brown has presented no evidence
of a contract between himself and a third party, including Ryan Homes, with which Reliant
has interfered. The trial court, therefore, did not err in dismissing Brown's counterclaim
for tortious interference with a contract.
{¶ 54} We likewise find that the trial court did not err in dismissing Brown's
counterclaim for tortious interference with a business relationship. Brown asserts that
Reliant intentionally interfered with Brown's business relationship with Ryan Homes,
thereby causing a breach or termination of the relationship, "by use of what was ultimately
determined to be an improper resort to injunctive relief." Contrary to Brown's suggestion,
the trial court never held that Reliant's act of seeking injunctive relief was improper.
Rather, the trial court dissolved the preliminary injunction on the sole ground that
"[Reliant] ha[d] not met the burden of clear and convincing evidence necessary to justify
an injunction." Turning to Brown's argument, Reliant's mere resort to filing a civil lawsuit
against Brown and seeking a preliminary injunction does not constitute a tortious
interference with a business relationship. To hold otherwise would have a chilling effect
on valid lawsuits seeking to enforce contractual provisions such as a noncompete
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covenant. Moreover, Brown has failed to articulate any damages resulting from Reliant's
alleged tortious interference with a business relationship. Here, Brown was out of work
for several months as a result of the magistrate's decision granting Reliant a preliminary
injunction. Thus, Brown's claimed loss of income was not caused by Reliant's filing of the
lawsuit and seeking of a preliminary injunction, but by the magistrate granting the
preliminary injunction.
Abuse of Process
{¶ 55} Brown argues the trial court erred in granting summary judgment to Reliant
on his abuse-of-process counterclaim. Brown asserts that Reliant's resort to injunctive
relief was not only "an act committed during the process that was not proper in the normal
context of the proceeding," but it also perverted the proceeding to accomplish the ulterior
purpose of stopping Brown from working at all and showing others of like mind what can
happen if they attempt to compete with Reliant.
{¶ 56} Abuse of process encompasses cases where "legal procedure has been
set in motion in proper form, with probable cause, and even with ultimate success, but
nevertheless has been perverted to accomplish an ulterior purpose for which it was not
designed." Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 1994-Ohio-503, ¶ 11. Thus,
abuse of process is designed to remedy the misuse or exploitation of the legal process
after a party has properly initiated a lawsuit with probable cause. Gauthier v. Gauthier,
2019-Ohio-4397, ¶ 67 (12th Dist.).
{¶ 57} To prevail on an abuse-of-process claim, the claimant must establish that
(1) a legal proceeding has been set in motion in proper form and with probable cause, (2)
the proceeding has been perverted to attempt to accomplish an ulterior purpose for which
it was not designed, and (3) direct damage has resulted from the wrongful use of process.
Id. "[T]he key consideration in an abuse of process action is whether an improper purpose
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was sought to be achieved by the use of a lawfully brought previous action." Yaklevich at
¶ 19. In a claim for abuse of process, the tortious character of the conduct of the initiator
of the lawsuit must be clearly shown by the claimant to entitle him to maintain his action.
Clermont Environmental Reclamation Co. v. Hancock, 16 Ohio App.3d 9, 11 (12th Dist.
1984). "[A]buse of process occurs where someone attempts to achieve through use of
the court that which the court is itself powerless to order." Robb v. Chagrin Lagoons Yacht
Club, Inc., 1996-Ohio-189, ¶ 31.
{¶ 58} We find there is no genuine issue of material fact regarding Brown's abuse-
of-process counterclaim because Brown failed to present evidence establishing Reliant's
ulterior motive. That is, there is no summary judgment evidence that Reliant had an
ulterior motive in seeking injunctive relief. Here, Reliant filed a lawsuit against Brown and
sought injunctive relief specifically to prevent Brown from competing directly with it. These
are not "ulterior purposes" that Reliant aims to accomplish but are clearly the stated and
primary goals of these proceedings. Furthermore, as plainly shown by its December 12,
2022 decision dissolving the preliminary injunction, it is well within the trial court's
jurisdiction to grant or deny a preliminary injunction. See Robb at ¶ 31. See also Robert
W. Clark, M.D., Inc. v. Mt. Carmel Health, 124 Ohio App.3d 308, 315 (10th Dist. 1997)
(noncompete covenants may be enforced by injunctive relief). The trial court, therefore,
did not err in granting summary judgment in favor of Reliant on Brown's abuse-of-process
counterclaim.
{¶ 59} In light of the foregoing, the trial court did not err in granting summary
judgment to Reliant on Brown's counterclaims for abuse of process and tortious
interference with a contract and business relationship. Brown's second cross-assignment
of error is overruled.
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{¶ 60} Judgment affirmed.
BYRNE, P.J., and M. SIEBERT, J., concur.
JUDGMENT ENTRY
The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed.
It is further ordered that a mandate be sent to the Warren County Court of Common Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27.
Costs to be taxed 50% to appellant and 50% to appellee.
/s/ Matthew R. Byrne, Presiding Judge
/s/ Mike Powell, Judge
/s/ Melena S. Siebert, Judge
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