Robert Frank Sholes (deceased) v. Agency Rent-A-Car, Inc., 91-LW-4510

• Decision Date: 14 November 1991
• Docket Number: 91-LW-4510,59143
• Parties: ROBERT FRANK SHOLES (DECEASED), Plaintiff-Appellant v. AGENCY RENT-A-CAR, INC., Defendant-Appellee CASE
• Court: Ohio Court of Appeals

ROBERT FRANK SHOLES (DECEASED) Plaintiff-Appellant v. AGENCY RENT-A-CAR, INC., Defendant-Appellee

No. 59143.

91-LW-4510 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

November 14, 1991

Civil appeal from Common Pleas Court CASE NO. 168,614.

For Plaintiff-Appellant: Suzanne M. Nigro, Gordon S. Friedman 2700 Terminal Tower, Cleveland, Ohio 44113.

For Defendant-Appellee: Paul R. Phillips, Peter T. Zackeroff 30000 Aurora Road, Solon, Ohio 44139.

OPINION

NAHRA P.J.:

Robert Frank Sholes, Sr., executor of the estate of his son, Robert Frank Sholes, appeals from the trial court's grant of summary judgment to his son's former employer, Agency Rent-A-Car, Inc., appellee. For the reasons set forth below, we affirm.

Robert Frank Sholes began employment with Replacement Rent-A-Car, Inc. in July of 1984 as a field representative in Atlanta, Georgia. Replacement was in the business of providing temporary substitute cars to customers of automobile dealers. Sholes was subsequently promoted to the position of Regional Trainer. In May of 1987, he was transferred to Replacement's Dallas/Fort Worth region as a regional trainer.

In November, 1987, Sholes tested positive for HIV. He was diagnosed with AIDS in May of 1988.

On June 30, 1988, Agency Rent-A-Car, Inc. acquired Replacement Enterprises, Inc., d/b/a/ Replacement Rent-A-Car, Inc. Since Agency did not have the position of Regional Trainer, Sholes was offered the position of Office Manager at one of Replacement's dealer locations. He was taken off salary and made an hourly employee. In late August, Sholes learned that his health and hospitalization insurance had been changed when he received the Agency employee handbook. Both his previous medical insurer and Agency informed him that he could not retain his previous insurance coverage, which had better benefits for the treatment of AIDS.

On October 1, 1988, Agency assigned James M. Tingley to administer the reorganization of the Replacement offices in the zone where Sholes was employed. Tingley discovered that Sholes had AIDS on October 4 or 5 from district manager Ronnie Herring.

On October 10, Sholes called Tingley regarding his medical benefits and informed Tingley that he was about to be hospitalized for chemotherapy. Although the date is disputed, Tingley terminated Sholes over the telephone while Sholes was hospitalized sometime before October 17. Tingley asserted that Sholes requested to be laid off. Sholes stated that he was told he was being laid off, but that he wanted to keep his job and was in effect fired because he had AIDS. Agency claimed that the office was being closed, although it was not closed until the end of October. Sholes subsequently collected unemployment compensation.

On October 19, 1988, Sholes filed a charge of discriminatory discharge with Texas Commission on Human Rights. In a letter dated November 7, 1988, the TCHR notified Sholes that it was issuing him a Notice of Right to File a Civil Action. Sholes received the letter and notice in November or December, 1988. In January, 1989, Sholes relocated to Cleveland to seek better medical care. On February 22, 1988, Sholes filed a charge of discriminatory discharge with the Ohio Civil Rights Commission. In a letter dated April 12, 1989, the Ohio Civil Rights Commission notified Sholes that it was dismissing his complaint due to lack of jurisdiction. It noted that Sholes' employment was in Texas; that he filed a charge in Texas; and that he failed to act upon the right to sue notice within the regulatory timeframe. Sholes filed a petition for judicial review of the Commission's decision on May 29, 1989 in the Cuyahoga County Common Pleas Court.

Meanwhile, Sholes filed a complaint against Agency on April 26, 1989, asserting claims of breach of an implied contract, promissory estoppel, emotional distress, fraud, negligent misrepresentation, and breach of the implied covenant of good faith and fair dealing. On May 15, he filed an amended complaint adding a claim for discriminatory discharge. On May 25, he moved to have his separate Civil Rights Commission appeal reassigned to the same judge who was assigned to his case against Agency. The motion was denied.

On August 31, Sholes died. His father was substituted as executor.

Agency filed a notice of its intent to rely on Texas law at the end of September. Shole's executor filed a motion for partial summary judgment on the choice of law issue, claiming that Ohio law applied.

Agency filed a motion for summary judgment. It claimed that Texas law applied; that Sholes' employment was at will; that the discrimination claim was time-barred; and that Sholes could not bring separate tort actions arising out of an employment relationship according to Texas law. Sholes' executor opposed the motion, and the trial court granted summary judgment for Agency. The trial court subsequently adopted Agency's proposed findings of fact and conclusions of law, and denied partial summary judgment for Sholes' executor. Sholes' executor brought this timely appeal.

I. Appellant's first assignment of error reads as follows:

THE LOWER COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT WHICH SOUGHT APPLICATION OF OHIO LAW, AND INSTEAD, ORDERED THAT TEXAS LAW APPLIES TO ALL CAUSES OF ACTION.

In Morgan v. Biro (1984), 15 Ohio St. 3d 339, the court set forth guidelines for the choice of law in tort actions. The court noted that the substantive law of the place where the injury occurred ("lex loci delicti") used to be applied automatically. It stated that this rule is still viable, but that a more flexible approach should be used. It outlined that approach as follows:

We hereby adopt the theory stated in the Restatement of the Law of Conflicts, as it is more reflective of our past decisions and also provides sufficient guidelines for future litigation.

When confronted with a choice-of-law issue in a tort action under the Restatement of the Law of Conflicts view, analysis must begin with Section 146. Pursuant to this section, a presumption is created that the law of the place of the injury controls unless another jurisdiction has a more significant relationship to the lawsuit. To determine the state with the most significant relationship, a court must then proceed to consider the general principles set forth in Section 145. The factors within this section are: (1) the place of the injury; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; (4) the place where the relationship between the parties, if any, is located; and (5) any factors under Section 6 which the court may deem relevant to the litigation. All of these factors are to be evaluated according to their relative importance to the case.

See also Medley v. J.H. Williams Industrial Products, Inc. (Sept. 1, 1988), Cuyahoga App. No. 54257, unreported (this court determined that New York law applied to a wrongful discharge case brought by an Ohio resident who relocated to New York state for the employment at issue, and moved back to Ohio after his discharge); and Gries Sports Enterprises v. Modell (1984), 15 Ohio St. 3d 284, certiorari denied 473 U.S. 906 (contacts to be considered to determine choice of law in contract actions are the place of contracting, the place of negotiations, the place of performance, the location of the subject matter of the contract, and the domicile, residence, nationality, place of incorporation and place of business of the parties.)

In this case, the place of the alleged contracting, negotiation, and performance is Texas; the place of the alleged injury, conduct causing the injury, and relationship of the parties is Texas. Sholes moved to Ohio after his discharge, and Agency's corporate headquarters is located in Ohio. Since the relationship and conduct at issue were all in Texas, we find that Ohio's relationship to the lawsuit is not more important than Texas'. Accordingly, the place of the alleged injury and contracting should control. The trial court did not err in& finding that Texas law should apply.

Appellant also claims that appellee did not give reasonable notice of its intent to rely on Texas law pursuant to Civ. R. 44.1(A)(3). The rule calls for notice to be given in a "pleading or other reasonable notice." In Klouda v. First Federal Savings Bank (Aug. 18, 1988), Cuyahoga App. No. 54240, unreported, this court reversed a trial court's refusal to take judicial notice of municipal ordinances where the party gave notice of its intention to rely on the ordinances in a summary judgment motion. See also Bowman v. Koch Transfer Co. (6th Cir. 1988), 862 F. 2d 1257, where the court stated that the parties are charged with knowledge of the choice of law issues, and that the trial court did not err in addressing the issue on the second day of trial.

In this case, the choice of law issue should also have been apparent to the parties. Appellee filed its notice prior to filing for summary judgment and in advance of the scheduled trial date. Appellant's first assignment of error is without merit.

II.

Appellant's second assignment of error reads as follows:

THE LOWER COURT ERRED IN REFUSING JURISDICTION OF APPELLANT'S HANDICAP DISCRIMINATION CLAIM.

A. THE LOWER COURT ERRED IN FAILING TO RULE ON APPELLANT'S HANDICAP CLAIM PURSUANT TO OHIO REVISED CODE SECTION 4112.99.

B. THE LOWER COURT IMPROPERLY BASED ITS DENIAL OF JURISDICTION UPON ONLY A PORTION OF THE TEXAS STATUTE WHERE A READING OF THE STATUTE AS A WHOLE CLEARLY REVEALS APPELLANT TIMELY PRESENTED A CLAIM OF HANDICAP DISCRIMINATION.

Sholes filed a charge of discriminatory discharge with the Texas Commission on Human Rights, but did...