[Cite as Sivinski v. Kelley, 2011-Ohio-2145.]


         Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 94296



                                       JOHN A. SIVINSKI

                                                       PLAINTIFF-APPELLANT

                                                 vs.

                            LYNN ARKO KELLEY, ET AL.
                                                       DEFENDANTS-APPELLEES



                                JUDGMENT:
                    AFFIRMED IN PART, REVERSED IN PART,
                              AND REMANDED


                                        Civil Appeal from the
                                 Cuyahoga County Common Pleas Court
                                        Case No. CV-595064

        BEFORE:          Boyle, P.J., Sweeney, J., and Cooney, J.

        RELEASED AND JOURNALIZED: May 5, 2011
                                               2


ATTORNEYS FOR APPELLANT

John A. Sivinski
Brian R. Herberth
Brian J. Smith
Sivinski, Smith & Herberth, LLC
8905 Lake Avenue, Fourth Floor
Cleveland, Ohio 44102


ATTORNEY FOR APPELLEES

William T. Wuliger
The Brownell Building
1340 Sumner Court
Cleveland, Ohio 44115




MARY J. BOYLE, P.J.:

       {¶ 1} Plaintiff-appellant, John Sivinski, appeals several decisions of the trial court

arising from his jury trial, wherein the trial court granted a directed verdict in favor of

defendant-appellee, Lynn Arko Kelley (“Lynn”), in her individual and representative capacity

as the executrix of the estate of Michael Kelley (collectively “the Estate”), on all of Sivinski’s

claims and denied Sivinski’s motion for directed verdict on the Estate’s counterclaims for
                                              3

spoliation of the evidence and abuse of process.    He further appeals from the jury’s verdict,

awarding the Estate $600,000 on its counterclaims, which included an award of punitive

damages, and the trial court’s additional award of attorney fees for $296,352.01.        Finding

some merit to the appeal, we reverse the trial court’s denial of Sivinski’s motion for directed

verdict on the two counterclaims, thereby vacating the jury’s award of damages and attorney

fees, but affirm the trial court’s granting of the Estate’s motion for directed verdict on all of

Sivinski’s claims.

                                 Procedural History and Background

       {¶ 2} In 1997, Michael Kelley (“Kelley”), who was a nationally known attorney in

the field of asbestos litigation, started a law practice with a well-established Florida asbestos

lawyer, James Ferraro.     Together they formed the partnership of Kelley & Ferraro, LLP

(“K&F”) in June 1997.      Under the partnership agreement, each received 50 percent of the

partnership’s “distributable net earnings.”   And although the partnership agreement allowed

for the addition of new equity partners (with the written consent of both Kelley and Ferraro),

Ferraro’s 50 percent equity in the business was never to decline.

       {¶ 3} In June 1997, Kelley, who worked with Sivinski at Kelley’s prior employment,

recruited Sivinski to join him in the new firm.      Sivinski agreed and executed a contract,

titled 1997 Agreement (“1997 Agreement”), which, among other things, set forth the terms of

Sivinski’s compensation and his employment with K&F.             Specifically, under the 1997
                                                4

Agreement, Sivinski was to be paid a set salary but, effective January 1, 1998, he was to be

compensated as an “equity partner” from the proceeds due Michael Kelley under the

partnership agreement of K&F.         Under the 1997 Agreement, Sivinski was entitled to an

increasing percentage of the profits due Kelley (less Sivinski’s base salary of $225,000) until

2001.

        {¶ 4} According to Sivinski’s trial testimony, Kelley later approached him and

discussed modifying the terms of his compensation so that Ferraro would have to contribute

to Sivinski’s compensation, especially since Ferraro had been requiring Sivinski’s assistance

for trials in Florida.   Sivinski admits signing a second employment agreement with K&F in

1999 (“1999 Agreement”).        Under the 1999 Agreement, Sivinski would “continue to be a

‘salaried partner’ of K&F” for at least three years (2000-2002), but instead of a bonus

calculated as a percentage of profits, the amount of his bonuses was specifically set out in the

agreement.

        {¶ 5} Sivinski testified, however, that the 1999 Agreement did not govern his

compensation because Kelley told him that there was “no deal” as a result of Ferraro’s refusal

to accept the terms.     Sivinski maintained that he never received a copy of this agreement and

that it was understood that the 1997 Agreement still governed his compensation and

employment.
                                             5

       {¶ 6} He further testified that in 2004, he suspected that he was not being properly

compensated under the 1997 Agreement because he did not receive an end of the year bonus,

despite 2003 being an extremely profitable year for the law firm.   Shortly thereafter, on July

31, 2004, Kelley’s son was involved in a tragic car accident, which Sivinski claimed

prevented him from addressing his compensation issue with Kelley.      According to Sivinski,

he did not want to bother Kelley while he was coping with his son’s health conditions.

       {¶ 7} On January 1, 2006, Kelley died suddenly.      Lynn testified that, following her

husband’s death, Ferraro almost immediately locked her out of the firm and refused her

access to Kelley’s files, including a copy of the partnership agreement or any K&F records

relating to Sivinski’s contract terms.   Soon thereafter, Lynn, acting as the executrix of

Kelley’s Estate, commenced litigation against Ferraro and K&F, seeking, among other things,

to enforce Kelley’s rights under the partnership agreement.          See Kelley v. Ferraro,

CV-589040 (“Kelley I”).

       {¶ 8} Prior to filing the underlying suit, Sivinski approached Ferraro and presented

him with a copy of the 1997 Agreement, claiming that the firm owed him money under this

contract.   Ferraro, who did not have a high opinion of Sivinski, denied that Sivinski was

owed any money.

       {¶ 9} Thereafter, in June 2007, Sivinski commenced the underlying action against

Lynn, individually and in her capacity as the executrix of the Estate,    James Ferraro, and
                                               6

K&F, alleging that he was not properly compensated under his employment agreement.             He

sought declaratory judgment and an accounting of the partnership; he further alleged claims

for breach of contract, unjust enrichment, breach of fiduciary duty, and conversion.           In

support of his claims, Sivinski attached a copy of the 1997 Agreement to the complaint,

executed between himself and K&F, setting forth the terms of his compensation.

       {¶ 10} Ferraro and K&F jointly filed an answer, counterclaims, and asserted

cross-claims against the Estate for indemnity, unjust enrichment, and breach of fiduciary duty.

 The Estate answered the complaint, denying that the 1997 Agreement was legally binding,

and asserted eight counterclaims against Sivinski: (1) tortious interference with business

relationships and/or contractual rights; (2) civil conspiracy; (3) abuse of process; (4) breach of

contract; (5) breach of fiduciary duties; (6) fraud; (7) aiding and abetting; and (8) spoliation

of evidence.   They further asserted cross-claims against Ferraro and K&F.

       {¶ 11} Prior to trial, Sivinski dismissed his claims against Ferraro and K&F without

prejudice, who in turn also dismissed their counterclaims and cross-claims.      The Estate also

dismissed their cross-claims against Ferraro and K&F.       The matter proceeded to a jury trial

on Sivinski’s claims and the Estate’s counterclaims.

       {¶ 12} At the close of Sivinski’s case, Sivinski dismissed his conversion claim, and

the trial court granted a directed verdict in favor of the Estate on the remaining claims.    The

case proceeded on the Estate’s counterclaims.
                                               7

         {¶ 13} In contrast to Sivinski’s version of the events, the Estate contended that     the

1999 Agreement modified the terms of Sivinski’s compensation, rendering his claims without

merit.    The Estate presented evidence that Kelley was not satisfied with Sivinski’s

performance and therefore wanted to modify his compensation.         It further maintained that

Sivinski actively concealed the existence of the 1999 Agreement, knowing that the Estate had

no access to the document, given that Ferraro had locked Lynn out of the firm.          The Estate

also presented evidence that Sivinski denied the existence of any modifications of the 1997

Agreement in his discovery responses.      And although the Estate ultimately obtained a copy

of the 1999 Agreement, it did not receive it until almost three years into this case.    Sivinski,

however, was not the party to produce the document.          James Ferraro testified that, after

Sivinski’s suit was filed, a copy of the 1999 Agreement was later located in the K&F files.

         {¶ 14} The Estate further produced evidence of the attorney fees incurred as a result

of the litigation relating to Sivinski’s alleged underpayment.

         {¶ 15} At the close of its evidence, the Estate dismissed its breach of fiduciary duty

claim, and the trial court granted a directed verdict to Sivinski on the Estate’s remaining

counterclaims except for the abuse of process and spoliation of the evidence claims.          The

jury returned a verdict in favor of the Estate on these two claims, awarding $100,000 in

compensatory damages on each claim, $400,000 in punitive damages, and further finding that
                                               8

the Estate was entitled to recover attorney fees.    The trial court subsequently held a hearing

and awarded the Estate $296,352.01 for attorney fees.

       {¶ 16} Sivinski appeals, raising 12 assignments of error, which are set forth in the

attached appendix.     We will address them together and out of order where appropriate.

                                            Directed Verdict

       {¶ 17} In Sivinski’s first, second, and eleventh assignments of error, he challenges the

trial court’s rulings as to the denial of his motion for directed verdict, as well as the trial

court’s grant of the Estate’s motion for directed verdict on all of his claims.

       {¶ 18} We review a trial court’s decision regarding a motion for directed verdict de

novo. Schafer v. RMS Realty (2000), 138 Ohio App.3d 244, 257, 741 N.E.2d 155.              Civ.R.

50 sets forth the standard of granting a motion for directed verdict:

       {¶ 19} “When a motion for directed verdict has been properly made, and the trial

court, after construing the evidence most strongly in favor of the party against whom the

motion is directed, finds that upon any determinative issue reasonable minds could come to

but one conclusion upon the evidence submitted and that conclusion is adverse to each party,

the court shall sustain the motion and direct a verdict for the moving party as to that issue.”

       {¶ 20} In setting forth the standard for a directed verdict, the Ohio Supreme Court has

recognized: “it is well established that the court must neither consider the weight of the

evidence nor the credibility of the witnesses in disposing of a directed verdict motion. * * *
                                              9

Thus, if there is substantial competent evidence to support the party against whom the motion

is made, upon which evidence reasonable minds might reach different conclusions, the

motion must be denied.”       (Internal quotations and citations omitted.) Wagner v. Roche

Laboratories, 77 Ohio St.3d 116, 121, 1996-Ohio-85, 671 N.E.2d 252.        However, when the

party opposing the motion has failed to produce any evidence on one or more of the essential

elements of a claim, a directed verdict is appropriate. Hargrove v. Tanner (1990), 66 Ohio

App.3d 693, 586 N.E.2d 141.

         {¶ 21} With these foregoing principles in mind, we turn to Sivinski’s assignments of

error.

         A.   Spoliation of the Evidence

         {¶ 22} In his first assignment of error, Sivinski argues that the trial court erred in

denying his motion for a directed verdict on the Estate’s spoliation of the evidence claim.

He argues that there was no evidence to support all of the elements, and therefore the count

should not have gone forward for the jury to consider.   We agree.

         {¶ 23} The Ohio Supreme Court has recognized the elements for a spoliation claim as

follows: (1) pending or probable litigation involving the claimant; (2) the respondent’s

knowledge that litigation exists or is probable; (3) willful destruction of evidence by

respondent designed to disrupt claimant’s case; (4) actual disruption of claimant’s case; and
                                             10

(5) damages resulting therefrom.      Smith v. Howard Johnson, 67 Ohio St.3d 28, 29,

1993-Ohio-229, 615 N.E.2d 1037.

       {¶ 24} The Estate failed to satisfy the third element for a spoliation claim as there is

no evidence that Sivinski destroyed or altered the 1999 Agreement.             And while we

recognize that the Estate presented evidence that Sivinski concealed the existence of the 1999

Agreement, this alone is insufficient to give rise to a spoliation claim.      This court has

consistently recognized that mere concealment or misrepresentation, without any factual

allegation of destruction or alteration of evidence, is insufficient to state a claim for

spoliation.   See, e.g., Bugg v. Am. Standard, Inc., 8th Dist. No. 84829, 2005-Ohio-2613;

O’Brien v. Olmsted Falls, 8th Dist. Nos. 89966 and 90336, 2008-Ohio-2658.

       {¶ 25} The Estate, however, relies on the Eleventh District’s decision in Drawl v.

Cornicelli (1997), 124 Ohio App.3d 562, 706 N.E.2d 849, in support of its claim that willful

concealment is enough to support a spoliation claim.         In Drawl, the court recognized

“concealment” as a substitute for destruction or alteration of evidence to satisfy the third

element of a spoliation claim as set forth by the Ohio Supreme Court in Smith.      Id. at 568.

But aside from directly conflicting with this court’s precedent, Drawl is the minority view for

such a proposition.   Indeed, consistent with our precedent, other districts have refused to

extend the Smith holding to cases where spoliation claims did not involve the destruction or

alteration of physical evidence.   See, e.g., Tate v. Adena Regional Med. Ctr., 155 Ohio
                                              11

App.3d 524, 2003-Ohio-7042, 801 N.E.2d 930 (Fourth Appellate District); Pratt v. Payne,

153 Ohio App.3d 450, 2003-Ohio-3777, 794 N.E.2d 723 (Second Appellate District); Allstate

Ins. Co. v. QED Consultants, Inc., 5th Dist. No. 09CA14, 2009-Ohio-4896, ¶19 (detailed list

of Ohio cases refusing to extend the Smith holding to cases where the spoliation claim

asserted does not involve the willful destruction or alteration of physical evidence).

       {¶ 26} Accordingly, because the Estate failed to satisfy the third element for a

spoliation claim, the trial court should have granted a directed verdict in favor of Sivinski on

this claim.    Indeed, a trial court has a duty “to withhold an essential issue from the jury

when there is not sufficient evidence relating to that issue to permit reasonable minds to reach

different conclusions on that issue.”   O’Day v. Webb (1972), 29 Ohio St.2d 215, 220, 280

N.E.2d 896.     See, also, Civ.R. 50(A)(4).

       {¶ 27} The first assignment of error is sustained.

       B.     Abuse of Process

       {¶ 28} In his second assignment of error, Sivinski argues that his motion for directed

verdict on the Estate’s abuse of process claim should have been granted.

       {¶ 29} The tort of abuse of process has three elements: “(1) that a legal proceeding

has been set in motion in proper form and with probable cause; (2) that the proceeding has

been perverted to attempt to accomplish an ulterior purpose for which it was not designed;

and (3) that direct damage has resulted from the wrongful use of process.”         Yaklevich v.
                                              12

Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294, 1994-Ohio-503, 626 N.E.2d 115,

paragraph one of the syllabus.    This tort developed to provide a remedy in situations where

an appropriate legal procedure has been properly initiated, and even has ultimate success, but

has been perverted to accomplish some ulterior motive for which a court proceeding was not

intended.   Id. at 297.

       {¶ 30} We find Sivinski’s argument that the Estate failed to establish the second

element of the claim to be dispositive of this assignment of error.

       {¶ 31} In order to show the process was perverted to accomplish an ulterior purpose,

the Estate must show both an act committed during the process that was not proper in the

normal conduct of the proceeding and Sivinski’s ulterior motive.      See Ruggerio v. Kavlich,

8th Dist. No. 92909, 2010-Ohio-3995.       As recognized by the Ohio Supreme Court, “‘[t]he

improper purpose usually takes the form of coercion to obtain a collateral advantage, not

properly involved in the proceeding itself, such as the surrender of property or the payment of

money, by the use of the process as a threat or a club.’” Robb v. Chagrin Lagoons Yacht

Club, Inc., 75 Ohio St.3d 264, 271, 1996-Ohio-189, 662 N.E.2d 9, citing Prosser & Keeton

on Torts (5 Ed.1984) 898, Section 121.

       {¶ 32} The Estate contends that evidence of Sivinski’s concealing the 1999

Agreement along with his dismissing “the only party with potential liability,” i.e., K&F,
                                             13

sufficiently satisfies the second element.    We find, however, that this evidence fails to

demonstrate an ulterior motive giving rise to an abuse of process claim.

       {¶ 33} While the concealment of the 1999 Agreement clearly gives rise to a discovery

violation, this evidence falls short of the ulterior motive necessary for an abuse of process

claim; simply, the concealment was not an attempt to gain a collateral benefit outside of the

process.   To the contrary, such misconduct reveals an intent “to gain an objective

contemplated by the process, i.e., succeeding in the lawsuit.”      Wolfe v. Little (Apr. 27,

2001), 2d Dist. No. 18718.      And although such conduct is egregious and qualifies as an

improper act, the absence of an “ulterior motive” defeats an abuse of process claim.        Id.;

see, also, Grange Mut. Cas. Co. v. Klatt (Mar. 18, 1997), 10th Dist. No. 96APE07-888.

       {¶ 34} We likewise find that Sivinski’s pursuit of his claims against the Estate, after

having dismissed K&F — the alleged liable party on his claims — does not provide

sufficient proof of an “ulterior motive” to satisfy an abuse of process claim.   The gravamen

of its argument is that Sivinski wrongfully continued to pursue his claims against the Estate,

the most vulnerable defendant, for the express purpose of forcing it to pay money and satisfy

the debt of another.   The primary thrust of its claim is that Sivinski was improperly trying to

extort money from the Estate when he discovered that his claims no longer had any merit.

While such an argument may be a basis for sanctions under Civ.R. 11 or R.C. 2323.51, the
                                              14

frivolous conduct statute, it does not satisfy the second element for an abuse of process claim.




       {¶ 35} In determining whether “an ulterior motive” element is satisfied, the critical

inquiry is whether the plaintiff is using the court proceeding to obtain a benefit or remedy

against the defendant “that which the court is itself powerless to order in the proceeding.”

Robb at 271. For example, in Robb, the Ohio Supreme Court found that the plaintiffs’ filing

of lawsuits against a yachting club to coerce members to vote in their favor could be

construed as proof of an ulterior motive to overcome summary judgment.        Id.    In reaching

this conclusion, the court recognized that there was proof that the underlying lawsuit was

being used to accomplish a purpose that the trial court had no authority to grant.     As stated

by the court, “Clearly, the trial court had no authority to order club members how to vote.”

Id.

       {¶ 36} Thus, the ulterior motive contemplated by an abuse of process claim generally

involves an attempt to gain an advantage outside the proceeding, using the process itself as

the threat. Wolfe, supra (noting typical ulterior purposes as “extortion of money, prevention

of a conveyance, compelling someone to give up possession of something of value, when

these things were not the purpose of the suit”).

       {¶ 37} Conversely, abuse of process does not occur when a party uses the court to

pursue a legal remedy that the court is empowered to give. Ruggerio, supra; Havens-Tobias
                                             15

v. Eagle, 2d Dist. No. 19562, 2003-Ohio-1561.           And the mere fact that the claim is

determined to be without merit does not give rise to an abuse of process claim. Ruggerio at

¶39-40.

       {¶ 38} Further, while the Estate argues that Sivinski’s pursuit of his claims, which it

contends were meritless and made in bad faith, is enough to satisfy the second element of an

abuse of process claim, this court has consistently rejected such an argument.        See, e.g.,

Tilberry v. McIntyre (1999), 135 Ohio App.3d 229, 733 N.E.2d 636; Ruggerio, supra;

Kavlich v. Hildebrand, 8th Dist. No. 91489, 2009-Ohio-1090.      Indeed, “[i]t is well-settled *

* * that a threat to pursue a civil action, even if the action would be entirely frivolous or

brought in bad faith, does not constitute extortion.”   Tilberry at 241.   Finally, “there is no

liability for abuse of process where defendant has done nothing more than carry out the

process to its authorized conclusion, even though with bad intentions.”    Yaklevich at 298.

       {¶ 39} Here, we simply find no evidence that Sivinski abused the legal process to

accomplish an ulterior motive.     His motive from the inception of the case has been to

recover money under a contract, which is the very subject of this suit.           Sivinski has

maintained since the filing of the suit that he is entitled to payment against the Estate under

the 1997 Agreement.     If Sivinski had been successful, the trial court would have had the

power to award him the remedy that he was seeking.        And even though Sivinski failed on

his claims, and the trial court found that the 1997 Agreement was superceded by the 1999
                                              16

Agreement, an agreement that Sivinski denied existed, we still cannot say that an abuse of

process claim lies.

       {¶ 40} The second assignment of error is sustained.

       C.   Sivinski’s Claims: Declaratory Judgment, Breach of Contract, Unjust Enrichment,

       and Breach of Fiduciary Duty

       {¶ 41} In his eleventh assignment of error, Sivinski argues that the trial court erred in

granting the Estate’s motion for directed verdict as to his claims.          He contends that

reasonable minds could have reached different conclusions as to whether he was entitled to

compensation under the 1997 Agreement.           He specifically contends that he presented

evidence to counter the Estate’s claim that Kelley signed the agreement only in a

representative capacity.   He further contends that, based on the trial court’s ruling in Kelley

I, the original partnership agreement that created K&F is not valid and therefore, Kelley is

solely liable on the contract.   We find his arguments lack merit.

       {¶ 42} First, Sivinski ignores that the trial court entered a directed verdict on his

breach of contract, accounting, and declaratory judgment claims, after determining that, as a

matter of law, the 1999 Agreement was a valid, superceding agreement.        Sivinski offers no

argument countering this legal determination.     See App.R. 16(A)(7). His arguments as to

why the jury may have reached different conclusions as to his rights under the 1997

Agreement are therefore irrelevant.
                                              17

       {¶ 43} But even applying the 1997 Agreement, we find that Sivinski’s arguments fail

as a matter of law.   Before considering any outside evidence, a court must first look to the

plain language of the agreement to determine the intent of the parties. Aultman Hosp. Assn.

v. Community Mut. Ins. Co. (1989), 46 Ohio St.3d 51, 53, 544 N.E.2d 920. “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.”    Inland Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc.

(1984), 15 Ohio St.3d 321, 322, 474 N.E.2d 271.       The clear and unambiguous language of

the 1997 Agreement sets forth that the contract was executed between Sivinski and K&F —

not Michael Kelley.     Indeed, the only identified parties of the agreement are K&F and

Sivinski.   Further, Sivinski’s primary obligation under the contract was to “devote to K&F

all his time, attention, knowledge and skill to the practice of law and development of business

for and to the benefit of K&F while employed by K&F * * *.”          He owed no obligations to

Kelley, individually, under the agreement.     And although Kelley signed the agreement, he

did so in a representative capacity — his signature is underneath “Kelley & Ferraro, L.L.P.,”

preceded by the word “by.”       Thus, even assuming that Sivinski had not been properly

compensated under the 1997 Agreement, his claim would lie against K&F — not Kelley

individually.   See Stuart v. Natl. Indem. Co. (1982), 7 Ohio App.3d 63, 67, 454 N.E.2d 158.
                                                 18

       {¶ 44} We likewise find that the trial court properly entered a directed verdict on

Sivinski’s breach of fiduciary duty.     Although Sivinski claimed that he was an “equity

partner,” thereby giving rise to his breach of fiduciary duty claim, he failed to present

sufficient evidence to support this assertion.    Conversely, the evidence submitted, including

the partnership agreement and even the 1997 Agreement, belies his very claim.           Under the

partnership agreement, Michael Kelley and James Ferraro are the only two equity partners of

K&F.    And under the 1997 Agreement, Sivinski was “admitted as a ‘salaried partner’ of

K&F,” and that, while he was to be “compensated as an equity partner,” said compensation

was merely a “salary arrangement,” which remained in effect only while Sivinski was

employed by K&F.       The 1997 Agreement further provided that Sivinski’s salary was to be

paid from Kelley’s portion of the law firm’s profits.       Thus, as recognized by the trial court,

“there is no inference that a person is a partner if he receives a portion of the partnership

profits as a salary [under the Ohio’s Uniform Partnership Act].”       See R.C. 1775.06(D)(2).

       {¶ 45} Finally, Sivinski’s unjust enrichment claim fails as a matter of law because his

compensation was expressly governed by contract.          See Ullman v. May (1947), 147 Ohio St.

468, 72 N.E.2d 63, paragraph four of the syllabus; Metz v. Am. Elec. Power Co., Inc., 172

Ohio App.3d 800, 811, 2007-Ohio-3520, 877 N.E.2d 316 (recognizing that, in the absence of

fraud or bad faith, unjust enrichment is an alternative claim that is available only when there

is no valid, controlling contract between the parties).     As pointed out by the Estate, Sivinski
                                              19

never disputed that a valid contract governed his compensation — he merely disputed which

one.

       {¶ 46} The eleventh assignment of error is overruled.

                                    Collateral and Judicial Estoppel

       {¶ 47} In his third assignment of error, Sivinski argues that the trial court erred in

refusing to apply the doctrines of collateral and judicial estoppel.   He contends that, pursuant

to these doctrines, the Estate should have been barred from relying on the partnership

agreement in the proceedings below when it had allegedly argued in a separate action, i.e.,

Kelley I, that the same was invalid — a position accepted by the trial court in Kelley I.    We

disagree.

       {¶ 48} “The doctrine of judicial estoppel forbids a party from taking a position

inconsistent with one successfully and unequivocally asserted by the same party in a prior

proceeding.   Courts apply judicial estoppel in order to preserve the integrity of the courts by

preventing a party from abusing the judicial process through cynical gamesmanship,

achieving success on one position, then arguing the opposing to suit an exigency of the

moment.     The doctrine applies only when a party shows that his opponent: (1) took a

contrary position; (2) under oath in a prior proceeding; and (3) the prior position was

accepted by the court.”      (Internal quotations and citations omitted.)       Greer-Burger v.

Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, ¶25.
                                              20

        {¶ 49} Conversely, to be successful in a claim of collateral estoppel, a party must

prove the following four elements: “(1) The party against whom estoppel is sought was a

party or in privity with a party to the prior action; (2) There was a final judgment on the

merits in the previous case after a full and fair opportunity to litigate the issue; (3) The issue

must have been admitted or actually tried and decided and must be necessary to the final

judgment; and (4) The issue must have been identical to the issue involved in the prior suit.”

Monahan v. Eagle Picher Industries, Inc. (1984), 21 Ohio App.3d 179, 180-181, 486 N.E.2d

1165.

        {¶ 50} We find Sivinski’s assignment of error to be unpersuasive.       First, we do not

agree that the Estate took a contrary position in Kelley I to invoke the doctrine of judicial

estoppel.    See Kelley v. Ferraro, 8th Dist. No. 92446, 2010-Ohio-4179 (en banc decision

recognizing that neither Lynn Kelley nor the Estate abandoned their position that the

partnership agreement was a valid contract).      Moreover, this court has recognized that the

partnership agreement at issue in Kelley I was a valid and enforceable agreement.             See

Kelley v. Ferraro, 188 Ohio App.3d 734, 2010-Ohio-2771, 936 N.E.2d 986.

        {¶ 51} Accordingly, neither doctrine is applicable, and the third assignment of error is

overruled.

                                                 Moot
                                               21

       {¶ 52} Based on our disposition of the foregoing assignments of error, Sivinski’s

remaining eight assignments of error are rendered moot and will not be addressed.        See

App.R. 12(A)(1)(c).

       {¶ 53} In summary, we find that the trial court should have granted a directed verdict

on the spoliation and abuse of process claims.        We therefore vacate the damages award

rendered against Sivinski on these claims and vacate the award of attorney fees stemming

from the jury’s verdict.   We otherwise affirm the trial court’s judgment granting a directed

verdict in favor of the Estate on all of Sivinski’s claims.

       Judgment affirmed in part, reversed in part, and remanded to the lower court for

further proceedings consistent with this opinion.

       It is ordered that appellees and appellant share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.


       MARY J. BOYLE,         PRESIDING JUDGE

       JAMES J. SWEENEY, J., CONCURS;
       COLLEEN CONWAY COONEY, J., CONCURS IN PART
                                                  22

            AND DISSENTS IN PART WITH SEPARATE OPINION


            COLLEEN CONWAY COONEY, J., CONCURRING IN PART, DISSENTING IN
            PART:

            {¶ 54} I concur with the majority opinion except for its reversing the jury’s verdict on

the spoliation claim in the first assignment of error.      I would affirm the jury verdict and the

award of damages and attorney fees related to this claim.

            {¶ 55} Sivinski commenced this case after his law partner died suddenly.     He claims

he should have received a directed verdict on the spoliation claim because he did not have

possession of his 1999 Agreement, did not destroy it, and a copy of the contract was available

at trial.     He brought suit in 2007 alleging he was underpaid pursuant to his 1997 Agreement,

which by its terms covered his compensation at the law firm from 1998-2001.            He admitted

signing a second agreement in 1999 that changed his compensation and specifically set out

his bonus structure for 2000-2002.        When he first suspected that he had not received proper

compensation because he did not receive the end-of-the-year bonus for 2003, he said nothing

for the first seven months of 2004.        He claims he did not raise the issue after the July 31,

2004 car accident because that would have been insensitive.         He waited until Michael Kelley

died to raise the issue.

            {¶ 56} First of all, Sivinski initiated a breach of contract action knowing that the

contract he was suing under was superceded by a second agreement.              When asked during
                                               23

discovery for any document modifying his original contract, he represented that “None exist.”

  Sivinski also lied about the existence of the second contract during his deposition until he

was confronted with a copy bearing his signature.          This evidence is sufficient to prove

spoliation because it demonstrates that Sivinski knew of probable or pending litigation against

Lynn Kelley (he filed the suit against her and the Estate), he destroyed the original contract,

which disrupted her defense of his claims, and caused Kelley to incur substantial legal fees.

           {¶ 57} There is circumstantial evidence from which a jury could have concluded that

Sivinski destroyed the original copy of his 1999 Agreement, which was signed by both

Sivinski and Michael Kelley.        Ferraro testified that Kelley executed a copy of the 1999

Agreement but he could not locate the copy signed by Kelley in the Kelley & Ferraro files.

This evidence, when considered together with Sivinski’s act of suing on the 1997 Agreement

and denying the existence of the 1999 Agreement, strongly suggests he destroyed the copy

signed by Michael Kelley.         Because the jury should have been given the opportunity to
                              1




weigh this evidence, I find the trial court properly denied the motion for a directed verdict.

           {¶ 58} As Ohio Supreme Court noted in Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69

Ohio St.3d 638, 650, 635 N.E.2d 331: “we have recently held that ‘[a] cause of action exists

in tort for interference with or destruction of evidence * * *.’      Smith v. Howard Johnson


         Curiously, Sivinski had a copy of his 1997 Agreement. Perhaps the jury found it incredible
       1


that a lawyer would not have a copy of his second/current contract.
                                                    24

Co., Inc. (1993), 67 Ohio St.3d 28, 29, 615 N.E.2d 1037, 1038.”                    The Moskovitz court

found the doctor’s alteration of records exhibited a total disregard for the law.               The court

held that the evidence adduced at trial — the copy of page seven of the doctor’s office chart

recovered from the radiation department — fully supported an award of punitive damages.

Id. at 652.

          {¶ 59} And the dissent in Moskovitz fully supports my position as well.                   Justice
                                                                                                2




Wright stated:

          {¶ 60} “My major concern with the majority’s opinion is its treatment of the facts

surrounding the alleged spoliation.        I agree with the suggestion in the majority’s opinion that

if ‘records were altered, destroyed or concealed by Dr. Figgie in an effort to conceal his

medical negligence,’ an award of punitive damages may be justified in a separate cause of

action.     However, the question whether Dr. Figgie ‘altered certain records to conceal the fact

that malpractice occurred’ was a hotly disputed issue at trial, an issue vigorously rebutted

with lengthy testimony by Dr. Figgie and his nurse.           As is true with the determination of any

significant fact, it was the province of the jury to make a finding and return a verdict on the

issue of the alleged spoliation of evidence.               Such a determination is not our task.”

(Emphasis in original.)       Id. at 667-668.



          Justice Wright dissented in part due to the lack of any claim or jury instruction for spoliation.
      2
                                            25

       {¶ 61} As the majority correctly notes, when ruling on a directed verdict motion, the

court must neither consider the weight of the evidence nor the credibility of witnesses.   If

there is substantial competent evidence to support the nonmoving party, upon which evidence

reasonable minds might differ, the motion should be denied.

       {¶ 62} Here, we have substantial circumstantial evidence demonstrating a second

agreement was entered for 2000-2002, pursuant to which Sivinski was paid.       He made no

objection to the alleged underpayment until years later, after the other signatory to the

agreement had died.    Since it was not the role of the trial court to weigh this evidence or

judge witness credibility, the court properly denied the motion for directed verdict.

Therefore, I would affirm this portion of the judgment.

                                        APPENDIX

I. “The Trial Court Committed Prejudicial Error by Failing to Grant Appellant’s Motion for
a Directed Verdict and by Allowing Appellee’s Spoliation Claim to go to the Jury.”

II. “The Trial Court Committed Prejudicial Error by Denying Appellant’s Motion for a
Directed Verdict and Allowing Appellee’s Abuse of Process Claim to go to the Jury.”

III. “The Trial Court Committed Prejudicial Error in Denying Appellant’s Motion for
Collateral and Judic[i]al Estoppel to the Legal Effect of the K & F Partnership Agreement.”

IV. “The Trial Court Committed Prejudicial Error by Allowing the Issue of Damages to go
to Jury because there was no Competent, Credible Evidence of Damages.”

V.    “The Trial Court Committed Prejudicial Error by Making Inappropriate and Grossly
Prejudicial Comments Regarding Appellant, because these Comments Improperly and
Unfairly Influenced the Jury.”
                                           26


VI. “The Trial Court Abused its Discretion when it did not find that the Jury’s Award of
Punitive Damages was Erroneous, even though it was Contrary to Law because the Jury’s
Verdict Awarded Punitive Damages but did not Award Compensatory Damages.”

VII. “The Trial Court Abused its Discretion when it Ordered the Jury to Return to
Deliberations to Correct a Jury Verdict, which on its Face, was contrary to Law.”

VIII. “The Closing Argument of Appellee’s Counsel Constituted Blatant Misconduct which
resulted in Damage Award Improperly Based Upon Passion and Prejudice.”

IX. “The Trial Court Erred in Making Numerous, Improper Evidentiary Rulings, which
were Highly Prejudicial, and therefore, Constitute Prejudicial Error.”

X. “The Trial Court Committed Prejudice Error in Awarding Attorneys’ Fees as they were
Duplicated and Otherwise Improper.”

XI. “The Trial Court Committed Prejudicial Error by Granting Appellee’s Motion for a
Directed Verdict on Appellant’s Claims for Declaratory Judgment, Breach of Contract, Unjust
Enrichment and Breach of Fiduciary Duty.”

XII.   “The Trial Court Committed Prejudice Error by Failing to Provide the Jury with the
                                                Exhibits of Appellee During            its
                                                Deliberation.”
