AultCare Corp. v. Roach, 2009 Ohio 6186 (Ohio App. 11/16/2009), 2008CA00287.

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtDelaney
Citation2009 Ohio 6186
PartiesAultCare Corporation, et al, Plaintiffs-Appellees, v. Brian N. Roach, Defendant-Appellant.
Docket NumberNo. 2008CA00287.,2008CA00287.
Decision Date16 November 2009

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2009 Ohio 6186
AultCare Corporation, et al, Plaintiffs-Appellees,
Brian N. Roach, Defendant-Appellant.
No. 2008CA00287.
Court of Appeals of Ohio, Fifth District, Stark County.
Date of Judgment Entry: November 16, 2009.

Appeal from the Stark County Court of Common Pleas, Case No. 2006CV02407.


Richard S. Milligan, Philip E. Howes, Paul J. Pusateri, 4518 Fulton Drive N.W., Canton, Ohio 44735-5548, for Plaintiffs-Appellees.

Donald P. Wiley, 400 South Main Street, North Canton, Ohio 44720, for Defendant-Appellant.

Before: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.


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{¶1} Defendant-Appellant Brian N. Roach appeals the November 18, 2008 judgment of the Stark County Court of Common Pleas granting a permanent injunction in favor of Plaintiffs-Appellees AultCare Corporation and McKinley Life Insurance Company and against Appellant. For the reasons that follow, we affirm.


{¶2} In 1997, Appellant, a health insurance broker, sued Appellees in the Stark County Court of Common Pleas, Case No. 1997CV02897, alleging breach of contract concerning commission payments and tortious interference with his business relationships. On January 12, 2000, the parties entered into a settlement agreement (the "Contract") and it was filed under seal.

{¶3} The Contract provided for the release of all claims made by Appellant and prohibited Appellant from engaging in certain conduct, including entering the premises of Aultman Hospital. It also terminated his ability to serve now or in the future as an AultCare agent. The Contract also contained the following mutual non-disparagement clause:

{¶4} "V. Agreement to Refrain

{¶5} "A. Roach will refrain from any efforts to harass, impugn or disparage Aultman. Roach shall provide no documents or materials of any kind concerning Aultman to anyone for any purpose. The administrators of AultCare and McKinley Life Insurance, Inc. will refrain from any efforts to harass, impugn or disparage Roach. Aultman shall provide no documentation or materials of any kind concerning Roach to anyone for any purpose.

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{¶6} "B. Roach will neither participate in nor encourage the litigation of legal action against Aultman by third persons. Roach will not assist in the prosecution of a civil claim or lawsuit against Aultman by third persons."

{¶7} Appellees paid Appellant a substantial sum of money in consideration for the Contract.

{¶8} In 2003, Appellees were sued by Professional Claims Management, a third-party administrator of health insurance claims, in Professional Claims Management v. AultCare Corp., et al., Stark County Common Pleas, Case No. 2003CV04327.1 In the lawsuit, Professional Claims Management stated Appellees utilized a "Conversion Support Program," alleged to be an incentive and compensation program offered to insurance brokers for transferring customers to AultCare health insurance. Professional Claims Management claimed the use of the program resulted in tortious interference with Professional Claims Management's business contracts and civil conspiracy. On October 31, 2005, the parties settled the lawsuit when Appellees purchased Professional Claims Management.

{¶9} According to Appellees, in early 2006, Appellees discovered that Appellant had assisted in the lawsuit brought by Professional Claims Management. Appellees also alleged that Appellant had posted comments on a newspaper website that they claimed disparaged and impugned Appellees. On June 30, 2006, Appellees filed a complaint against Appellant for breach of the Contract, and requested a

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permanent injunction, compensatory damages and attorney's fees. Appellees made a jury demand in their complaint.

{¶10} Appellant filed a counterclaim against Appellees, alleging breach of the Contract, tortious interference with business relations, antitrust, and civil conspiracy. Appellant also made a jury demand. Appellant also sued several other insurance agencies, including Leonard Insurances Services, referring to them as "Chosen Brokers" who allegedly participated with Appellees in the Conversion Support Program.

{¶11} On October 10, 2006, Appellees filed a request for temporary restraining order and preliminary injunction to enjoin Appellant from continuing to violate the Contract. The trial court granted the temporary restraining order on October 12, 2006.

{¶12} On November 17, 2006, the trial court held a hearing on Appellees' motion for preliminary injunction. The trial court granted the motion for preliminary injunction on December 21, 2006. Appellant was enjoined from disparaging Appellees, from providing any documents concerning Appellees to anyone, and from assisting in the prosecution of any claims against Appellees by third persons. Appellant appealed the preliminary injunction to this Court, and we affirmed in part, and reversed on an unrelated issue in AultCare Corporation v. Roach, Stark App. No. 2007CA00009, 2007-Ohio-5686.

{¶13} On January 5, 2007 and October 2, 2007, Appellees filed show cause motions as to why Appellant should not be held in contempt for violating the temporary restraining order and/or the preliminary injunction. A hearing was held before the magistrate on Appellees' second motion to show cause.

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{¶14} Appellees amended their complaint to allege breach of the Contract, permanent injunction, defamation and recoupment on October 17, 2007. Appellees requested a jury. Appellant filed an answer to Appellees' first amended complaint along with a counterclaim and requested a jury.

{¶15} On November 27, 2007, the magistrate issued a decision and found Appellant to be in contempt of the preliminary injunction. The magistrate found that, in the span of one month, Appellant had distributed 456,000 emails with a press release to subscribers of; mailed 250 to 400 letters to employers in Stark, Tuscarawas, and Wayne Counties; mailed 150 to 275 letters to health care insurance agents throughout Northeast Ohio; sent 175 emails with a press release to friends, family, and business associates; sent 135 emails with a press release to reporters and media outlets throughout Ohio and the United States on two occasions; and made five internet postings of a press release on various internet websites. The press release and emails, which stated in part that Appellant was "exposing corruption in healthcare in our community" and made allegations regarding conspiratorial arrangements between an "insurance company" and brokers, did not refer to Appellees by name, but the Magistrate found that it would be clear to the recipients that Appellant was referring to Appellees. The magistrate found Appellant in contempt because Appellant was attempting to disseminate information that disparaged Appellees, in violation of the preliminary injunction.

{¶16} The trial court overruled Appellant's objections to the magistrate's decision and adopted it. Thereafter, the magistrate awarded Appellees $21,061.26 in attorney's fees. The trial court overruled Appellant's objections to the award of attorney's fees.

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{¶17} Appellant appealed the decision to this Court in AultCare Corporation v. Roach, Stark App. No. 2008CA00051, 2009-Ohio-948. In our decision, we affirmed the decision of the trial court to find Appellant in contempt for his violation of the preliminary injunction. Upon our review of the record, we agreed the communications were intended to spread disparaging information about Appellees in violation of the preliminary injunction. Id. at ¶10.

{¶18} While Appellant's appeal was pending regarding the contempt motion, the underlying claims proceeded before the trial court. On April 15, 2008, the trial court bifurcated the trials on the parties' claims. Trial #1, scheduled for October 20, 2008, was to be on Appellees' complaint against Appellant alleging breach of the Contract and defamation and on Appellant's counterclaim against Appellees alleging breach of the Contract and tortious interference with business relations. Trial #2 was to be on Appellant's claim against Appellees for violation of the Valentine Act and civil conspiracy and on the allegation of Defendant/Counterclaimant Leonard Insurance Agency against Appellant for defamation.

{¶19} On August 15, 2008, Appellees moved for summary judgment on Count One of Appellant's counterclaim alleging breach of the Contract and Count Two of Appellant's counterclaim alleging tortious interference with business relations. The trial court granted summary judgment in favor of Appellees on September 26, 2008.

{¶20} Appellant filed a notice of voluntary dismissal of his remaining counterclaims on October 2, 2008. He dismissed Count Three alleging anti-trust violations against Appellees and "Chosen Brokers" and Count Four which alleged conspiracy against Appellees and "Chosen Brokers." Upon Appellant's dismissal of

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Counts Three and Four of his counterclaims and the trial court's granting of summary judgment in favor of Appellees on Counts One and Two of Appellant's counterclaims, Appellant did not have any remaining counterclaims against Appellees. On October 16, 2008, Appellees filed a motion to amend their complaint to voluntarily dismiss their claims for breach of the Contract and defamation, leaving only their request for permanent injunction.

{¶21} On October 20, 2008, the parties appeared before the trial court on Appellees' complaint, the only remaining matter pending in the case.2 Before the hearing commenced, Appellant objected to Appellees' motion to amend their complaint arguing that by allowing Appellees to dismiss their claims of breach of contract and defamation and going forward only on the permanent injunction, the trial court would be depriving Appellant of his right to a jury trial. The trial court granted Appellees' motion to amend their complaint and the matter proceeded on...

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