Simons v. Buldas

2016 Ohio 7111

• Court: Ohio Court of Appeals
• Decided: September 30, 2016
• Docket: L-15-1316
• Status: Published

Opinion

[Cite as Simons v. Buldas, 2016-Ohio-7111.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Wendy Simons, et al. Court of Appeals No. L-15-1316

Appellants Trial Court No. CI0201403182

v.

James J. Buldas, Ed.D., et al. DECISION AND JUDGMENT

Appellees Decided: September 30, 2016

*****

R. Ethan Davis and Zachary J. Murry, for appellants.

John C. Barron and Katherine S. Decker, for appellee, Marina B. Lung.

OSOWIK, J.

{¶ 1} This is an appeal from an April 8, 2015 summary judgment ruling of the

Lucas County Court of Common Pleas, granting summary judgment to appellee Marina Lung, M.A. (“Lung”). For the reasons set forth below, this court affirms the judgment of

the trial court.

{¶ 2} Appellants, Wendy and Larry Simons (“appellants”), set forth the following

three assignments of error:

1. The Trial Court Committed Reversible Error by Entering

Summary Judgment in Favor of Defendant-Appellee Marina Lung, M.A.,

where Plaintiff-Appellants Presented Substantial and Compelling Evidence

that Defendant-Appellee Lung and Defendant-Appellee Buldas Operated

Their Business as a Partnership in Fact and/or by Estoppel, and that they

Represented Themselves to the Public as a Partnership, and that Plaintiff-

Appellant Wendy Simons, in Fact, Relied upon these Representations.

2. The Trial Court Committed Reversible Error by Entering

Summary Judgment in Favor of Defendant-Appellee Lung on Plaintiff-

Appellants’ Negligent Hiring, Training, and Supervision Claims where

Plaintiffs-Appellants Presented Evidence that Defendant-Appellee Lung

Exercised Substantial Control over the Practice and the Performance of

Defendant-Appellee Buldas’ Duties as a Psychologist Sufficient to Show

the Existence of an Employment and/[or] Supervisory Relationship.

3. The Trial Court Committed Reversible Error by Finding that

Defendant-Appellee Buldas’ Tortious Misconduct was not Within the

Scope and Course of his Partnership and/or Employment Relationship with

2. Defendant-Appellee Lung, where the Court Ignored the Body of Evidence,

Applicable Case Law, the Ethical Standards of the Ohio State Board of

Psychology, and the Language of Defendant-Appellee Buldas’ own

Rescinded Malpractice Insurance Policy; all of which Establish that the

Failure of a Psychologist to Appropriately Manage the Transference

Phenomenon Constitutes Negligence, rather than Intentional Tortious

Conduct.

{¶ 3} The following undisputed facts are pertinent to this appeal. This case arises

from a long term, improper romantic relationship which transpired between appellant

Wendy Simons (“Mrs. Simons) and her marital counseling service provider, appellee

Buldas. The relationship was not disclosed by either party to the relationship to appellee

Lung. The existence of the relationship was not discovered by any other source or means

by appellee Lung.

{¶ 4} In May 2006, appellants, a married couple, commenced marital counseling

session with Buldas, a Toledo-area psychologist. Subsequent to appellants’ second joint

counseling session with Buldas, only Mrs. Simons continued receiving counseling

treatment from Buldas on an individual basis. At all times relevant to the instant case,

Buldas maintained an office sharing arrangement with another psychology practitioner,

appellee Lung.

{¶ 5} Notably, the record reflects that Lung and Buldas did not execute or engage

in any form of written or oral business partnership at any time during the relevant

3. timeframe. In addition, Lung and Buldas did not jointly own office space or office

equipment during the relevant timeframe. Rather, the record reflects that Lung and

Buldas participated in an office sharing arrangement pursuant to which each of them

executed the lease agreement on the office space in their individual capacity.

{¶ 6} Consistent with the above, the record further shows that Lung and Buldas

never shared in the profits or losses of their respective individual psychology practices.

On the contrary, Lung and Buldas maintained separate patient records, separate financial

records, separate appointment cards, separate letterhead, and separate business tax I.D.

numbers. Although Lung and Buldas shared the services of one support staff employee,

all shared decisions and authority were confined to this shared support staff employee. It

did not extend in any way to the two separate professional psychology practices of Lung

and Buldas.

{¶ 7} Subsequent to Mr. Simons discontinuing marital counseling services, and

Mrs. Simons continuing counseling on an individual basis, Buldas initiated and

transformed the relationship between the two from a professional relationship between a

patient and a treating psychologist into an improper, romantic, and intimate relationship.

This intimate relationship between them continued from 2006 until 2013. Lung was

never made aware of, and never learned of, the improper relationship during the duration

of the relationship.

{¶ 8} In November 2013, Mr. Simons first became aware of the nature of the

relationship between Mrs. Simons and Buldas. Immediately thereafter, Mrs. Simons

4. discontinued both the counseling sessions and the intimate relationship with Buldas.

Following the subsequent receipt of intensive counseling services with a new treatment

provider, Mrs. Simons filed a formal complaint against Buldas with the Ohio State Board

of Psychology. On July 15, 2014, appellants filed the complaint against appellees

underlying this matter.

{¶ 9} On October 2, 2014, Buldas entered into a voluntary consent agreement with

the Ohio State Board of Psychology indefinitely suspending Buldas from the practice of

psychology as a result of these events. As relevant to Lung, appellants’ complaint set

forth allegations of liability against Lung for the actions of Buldas pursuant to the

claimed causes of action of partnership liability and negligent supervision.

{¶ 10} On November 26, 2014, Lung filed for summary judgment. In support,

Lung maintained that she was not engaged with Buldas in any actual or constructive

business partnership or employment relationship of any kind from which liability for the

events could be attributable to her.

{¶ 11} On the contrary, Lung asserted that she and Buldas were strictly maintained

an office sharing arrangement. Following discovery, including the depositions of Lung

and the office support staff employee, appellants filed their brief in opposition to Lung’s

pending motion for summary judgment.

{¶ 12} On April 8, 2015, the trial court granted summary judgment to Lung. The

trial court determined, in relevant part, that reasonable minds could only conclude that no

genuine issue of material fact remained in dispute regarding whether Lung could be held

5. liable in damages for the improper conduct of Buldas. The trial court unequivocally held

that the evidence failed to establish any potential requisite underlying business or

partnership or employment relationship so as to potentially impose liability and damages

against Lung in this matter. This appeal ensued.

{¶ 13} Appellants’ first two assignments of error are both rooted in the common

premise that the trial court erred in granting summary judgment to Lung in connection to

claimed liability and damages attributable to Lung for the professional misconduct of

Buldas. Accordingly, they will be addressed simultaneously.

{¶ 14} In the first assignment of error, appellants contend that they presented

convincing evidence of the existence of a business partnership between Lung and Buldas,

so as to trigger potential liability against Lung for the misconduct by Buldas. We do not

concur.

{¶ 15} We note at the outset that appellate review of disputed summary judgment

decision is conducted on a de novo basis, with this court utilizing the same standard as

the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 572 N.E.2d

198 (9th Dist.1989). Accordingly, summary judgment is proper when there remains no

genuine issue of material fact in dispute and, when construing the evidence most strongly

in favor of the non-moving party, reasonable minds can only conclude that the moving

party is entitled to judgment as a matter of law. Civ.R. 56(C).

{¶ 16} R.C. 1776.01(M) defines a partnership to be, in relevant part, “[A]n

association of two or more persons to carry on as co-owners a business for profit.” In the

6. course of interpreting and applying this statute, Ohio courts look to key evidentiary

factors; such as whether an express or implied partnership contract existed, whether the

parties shared profits and losses, whether the parties approach to control and agency

issues reflected mutuality, and lastly, whether there was co-ownership of real estate or

supplies and materials utilized in connection to the claimed partnership and acquired with

shared funds. Grendell v. Ohio Env. Protection Agency, 146 Ohio App.3d 1, 764 N.E.2d

1067 (9th Dist.2001).

{¶ 17} In applying the above statutory and case law framework to the claimed

partnership in this matter, the record reflects that the parties never executed a written

partnership contract or entered into an oral partnership agreement. The record reflects

that the parties to the claimed partnership at no time shared in the profits or losses from

their respective, separate psychology practices. The record contains no evidence of the

parties to the claimed partnership acting in a manner that could be construed so as to

constitute mutuality of agency or control regarding their professional work. The record

reflects that the parties did not co-own any real estate, equipment, supplies or materials,

or any other property in connection to their professional work.

{¶ 18} On the contrary, the record reflects that the parties to the claimed

partnership executed the lease agreement of the premises of their professional offices in

their individual capacities, possessed separate tax ID identifiers, separate insurance

numbers, separate patient records, separate financial records, and even separate letterhead

and appointment cards. In conjunction with this, the record reflects no evidence in

7. support of the notion that appellee Lung ever acted or conducted herself in any way to

anyone suggestive of a partnership between Lung and Buldas.

{¶ 19} While appellants point to facts such as the parties having both of their

names on the fax cover sheet utilized by the support staff employee and both parties to

the claimed partnership jointly contributed to the compensation of the employee, these

facts do not negate the bulk of evidence in this case that demonstrates an informal office

sharing arrangement, rather than any form of legal partnership, existed between the

parties.

{¶ 20} Appellants also assert that the existence of a now defunct corporation,

Comprehensive Counseling Center Inc. (“CCC”), that the parties were involved with,

supports the notion that a partnership existed in this case. We note that CCC was legally

canceled and rendered defunct by the Ohio Secretary of State on June 17, 2002. The

relevant timeframe applicable to this case commenced in 2006.

{¶ 21} Lastly, appellants rely upon the case of Estate of Holmes ex rel. Webb v.

Ludeman, 6th Dist. Lucas No. L-00-1294, 2001 WL 1198628 (Oct. 5, 2001), in support

of the partnership claim. We have reviewed Ludeman and find it to be materially

distinguishable, and therefore, not controlling in this case. In Ludeman, contrary to the

facts of the present case, the parties to the claimed partnership engaged in revenue

sharing, they co-owned office furniture and supplies, they had joint access to the client

files of all members of the claimed partnership, they represented themselves to the public

as a joint business enterprise through the name utilized in advertising and printed in the

8. telephone directory, and it was suggested by the name they announced to telephone

callers. None of these factors in support of a claimed partnership are present in this case.

{¶ 22} The record in this case encompasses an abundance of objective, relevant

evidence which, taken together, negates the assertion of a business partnership in this

matter. Appellants have not furnished convincing evidence demonstrating that the

arrangement between the parties constituted anything beyond an informal, office sharing

arrangement. Wherefore, we find appellants’ first assignment of error not well-taken.

{¶ 23} In appellant’s second assignment of error, they similarly assert that the trial

court summary judgment ruling was in error regarding claims of negligent hiring,

training, supervision, and control alleged against Lung regarding Buldas. We do not

{¶ 24} Consistent with our determination in response to appellants’ first

assignment of error, we again note that the record is similarly devoid of evidence

demonstrating some sort of legally enforceable employment relationship between Lung

and Buldas. Rather, the record is replete with evidence of an informal office sharing

arrangement that cannot be construed as any form of legal partnership so as to potentially

subject Lung to employment relationship liability regarding Buldas.

{¶ 25} While appellants rely upon the fact that there was an office employee

shared by Lung and Buldas, that fact does not negate the record of evidence

demonstrating that there was no written or verbal partnership between the parties, no

shared profits or losses, separate tax identifier information, separate patient records,

9. separate financial records, no co-owned real estate or property of any kind connected to

their respective individual psychology practices, and no evidence of mutuality of control

in connection to their respective psychology practices.

{¶ 26} Appellants also point to testimony from the shared employee that the

employee believed Lung encouraged Buldas to seek alcohol treatment as somehow

demonstrative of the claimed employment relationship. We do not find that someone

encouraging a sibling to seek assistance for potential alcohol issues as constituting

persuasive evidence of an employment relationship under the facts of this case.

{¶ 27} Appellants have not furnished facts demonstrative of potential liability

against Lung for the misconduct of Buldas rooted in any form of claimed business

partnership or any form of claimed employment relationship. Wherefore, we find

appellants’ second assignment of error to be not well-taken.

{¶ 28} In the third assignment of error, appellants maintain that the trial court

summary judgment ruling erred in finding that the misdeeds of Buldas underlying this

matter would, by their very nature, fall outside of the scope and course of any claimed

business partnership relationship and/or claimed employment relationship between the

parties such that Lung could potentially be held liable for the conduct of Buldas.

{¶ 29} We note that the premise of appellants’ third assignment of error is

contingent upon a determination by this court that the evidence in this case demonstrates

that some form of business partnership relationship and/or employment relationship

exists between Lung and Buldas so as to potentially impose joint liability.

10. {¶ 30} Given our determination in response to appellants’ first two assignments of

error, finding that no business partnership relationship and/or employment relationship

existed in this case, appellants’ third assignment of error is moot. We find appellants’

third assignment of error to be not well-taken.

{¶ 31} Based upon the foregoing, the judgment of the Lucas County Court of

Common Pleas is hereby affirmed. Appellants are ordered to pay the cost of this appeal

pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE

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