[Cite as Gudorf Law Group, L.L.C. v. Brannon, 2019-Ohio-3529.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 GUDORF LAW GROUP, LLC                              :
                                                    :
         Plaintiff-Appellant                        :    Appellate Case No. 27883
                                                    :
 v.                                                 :    Trial Court Case No. 2016-CV-2688
                                                    :
 DAVID BRANNON                                      :    (Civil Appeal from
                                                    :     Common Pleas Court)
         Defendant-Appellee                         :
                                                    :

                                             ...........

                                            OPINION

                          Rendered on the 30th day of August, 2019.

                                             ...........

RICHARD HEMPFLING, Atty. Reg. No. 0029986, 15 West Fourth Street, Suite 100,
Dayton, Ohio 45402
      Attorney for Plaintiff-Appellant

MATTHEW C. SCHULTZ, Atty. Reg. No. 0080142 and DAVID D. BRANNON, Atty. Reg.
No. 0079755, 130 West Second Street, Suite 900, Dayton, Ohio 45402
      Attorneys for Defendant-Appellee

                                           .............




HALL, J.
                                                                                         -2-




       {¶ 1} The Gudorf Law Group, LLC (“Gudorf”) appeals from the trial court’s decision

and judgment entry denying defendant-appellee David Brannon’s motion for sanctions

and overruling Gudorf’s motion for reconsideration of a prior summary judgment decision

in Brannon’s favor.

       {¶ 2} In its two assignments of error, Gudorf does not challenge the trial court’s

ruling on Brannon’s sanctions motion. Rather, in its first assignment of error, Gudorf

challenges the trial court’s earlier entry of summary judgment in favor of Brannon on

Gudorf’s complaint. In its second assignment of error, Gudorf challenges the trial court’s

overruling of its motion for reconsideration of that summary judgment decision.

       {¶ 3} The record reflects that Gudorf filed the underlying case against Brannon in

May 2015, alleging seven claims arising out of the parties’ employment relationship. The

claims involved Brannon’s terminating his employment with Gudorf and taking a client

with him to his new employer, Brannon & Associates. After leaving Gudorf, Brannon

obtained a favorable settlement for his client and earned a substantial fee. In its lawsuit,

Gudorf asserted a right to be compensated for the departed client. Brannon filed

counterclaims in June 2016. Both parties moved for summary judgment on Gudorf’s

complaint. In May 2017, the trial court resolved the motions by entering summary

judgment in favor of Brannon on the complaint.

       {¶ 4} Gudorf appealed the trial court’s summary judgment decision to this court in

Gudorf Law Group, LLC v. Brannon, 2d Dist. Montgomery No. 27628 (“Gudorf I”). We

dismissed the appeal on July 24, 2017 for lack of a final, appealable order. We noted that

the trial court had not resolved Brannon’s counterclaims and had not included Civ.R.
                                                                                        -3-


54(B) certification. We also observed that Brannon had filed a sanctions motion, which

remained pending in the trial court. The sanctions motion had been filed after the trial

court’s summary judgment ruling but before Gudorf’s notice of appeal. We opined that the

sanctions motion “may need to be resolved, or Civ.R. 54(B) certification added, before

the matter is considered final.” Gudorf I, July 24, 2017 Decision and Final Judgment Entry.

         {¶ 5} After we dismissed Gudorf I, the trial court scheduled a bench trial on

Brannon’s counterclaims and sanctions motion. On August 25, 2017, Brannon voluntarily

dismissed his counterclaims, leaving his sanctions motion pending. The trial court

proceeded to hold a hearing on the issue of sanctions. After the hearing, the trial court

filed a January 2, 2018 decision and judgment entry denying sanctions against Gudorf

and also overruling a motion by Gudorf for reconsideration of the earlier summary

judgment decision in favor of Brannon. Gudorf filed a notice of appeal on January 31,

2018, instituting the present case. Brannon moved to dismiss the appeal as untimely.

Brannon acknowledged that Gudorf filed its notice of appeal within 30 days of the trial

court’s January 2, 2018 decision and judgment entry. Brannon argued, however, that if

Gudorf wanted to challenge the trial court’s summary judgment ruling, it should have

appealed within 30 days of his August 25, 2017 notice of voluntary dismissal of his

counterclaims. Brannon reasoned that his dismissal of the counterclaims made the

summary judgment decision final and appealable. In response, Gudorf asserted that the

pending sanctions motion precluded finality until the trial court resolved the sanctions

issue.

         {¶ 6} In a June 15, 2018, decision and entry, we overruled Brannon’s motion to

dismiss the present appeal. We noted that the order designated in Gudorf’s notice of
                                                                                          -4-


appeal was the trial court’s January 2, 2018 decision and judgment entry, which was final

and appealable. Because Gudorf filed a timely notice of appeal on January 31, 2018, we

held that we had jurisdiction over this appeal. As for whether Gudorf could assign as error

in this appeal the trial court’s May 2017 summary judgment decision, we explained that

we would “consider that argument with the merits of the appeal after all the briefs have

been filed.” Briefing now has been completed, and the foregoing issues are before us for

resolution.

       {¶ 7} We turn first to Brannon’s contention that Gudorf cannot raise as error in this

appeal the trial court’s May 2017 entry of summary judgment on Gudorf’s complaint.

Based on our review of the record, we are inclined to agree with Gudorf’s argument that

Brannon’s pending sanctions motion precluded finality until the trial court resolved the

sanctions issue. That being so, the trial court’s interlocutory summary judgment decision

became final when the trial court filed its January 2, 2018 decision and judgment entry

denying sanctions. Because Gudorf timely appealed from the sanctions decision, we

believe the trial court’s May 2017 summary judgment decision also is properly before us.

We need not dwell on this issue, however, for two reasons. First, the present appeal itself

is properly before us because Gudorf filed a timely notice of appeal from the trial court’s

January 2, 2018 decision and judgment entry. Second, even if we accept, arguendo, that

Gudorf’s appeal encompasses the trial court’s summary judgment decision, we see no

error in that decision. As we will explain more fully in the analysis that follows, the trial

court properly entered summary judgment in favor of Brannon on Gudorf’s complaint.

       {¶ 8} In its first assignment of error, Gudorf challenges the trial court’s entry of

summary judgment in favor of Brannon on the law firm’s claims for breach of a written
                                                                                          -5-


employment contract or, alternatively, for breach of a subsequent oral agreement. Both

claims alleged that Brannon left the Gudorf firm and took a client with him, ultimately

obtaining a favorable settlement for the client and earning a substantial fee. The claims

for breach of the written and oral agreements asserted that Gudorf was entitled to be

compensated for the departed client.

       {¶ 9} The claim in the complaint regarding the written contract concerned Gudorf’s

employment agreement with Brannon. Under the terms of that agreement, Gudorf’s

entitlement to compensation for the departed client depends on whether the client was “a

direct client referral” of Brannon. The employment agreement provides a formula for

Gudorf to obtain compensation if the client Brannon took with him was not “a direct client

referral of Employee.” The trial court concluded that the client was a direct client referral

of Brannon, the employee, because the client was referred to him by his father, Dwight

Brannon. Because the client was a direct client referral, the trial court held that Gudorf

was not entitled to any compensation under the employment agreement.

       {¶ 10} On appeal, Gudorf contends the trial court erred in holding that the client

Brannon took with him when he left the firm was a “direct client referral” of Brannon.

Gudorf’s substantive argument is as follows:

               * * * [T]he Court determined GLG’s claim of breach of written

       contract solely on its own interpretation of the meaning of the undefined

       term “direct client referral of Employee.” Gudorf swore under oath at his

       deposition that his understanding of the meaning of that term was that it

       referred to one who was already a client of the employee before the

       employee was hired. See Gudorf depo. p. 141. Appellant submits that this
                                                                                           -6-


       is an entirely reasonable interpretation of the term. In opposition to that,

       Appellee merely argued, without sworn testimony from Brannon as to his

       understanding, that the term meant any client that may have been referred

       to him by a third party, regardless of whether he brought the client with him,

       or was assigned primary responsibility for the client after becoming an

       employee.

              Initially, Appellant submits that Brannon’s mere argument does not

       constitute the type of evidence required by Civ.R 56(C), and for this reason

       alone, Brannon did not meet his initial burden of demonstrating the absence

       of a genuine issue of material fact. Additionally, even if the Court could

       consider Brannon’s argument, or the words used in the agreement itself, as

       satisfying that initial burden, Gudorf’s testimony and differing understanding

       did, at the very least, create a genuine issue of material fact. Thus,

       paragraph 10b of the agreement called for compensation to GLG in the

       event that the employee left the firm and a client who was initially not a

       direct client referral of Employee became a “client or account of employee

       . . . .” As a result, summary judgment on the breach of written contract claim

       was inappropriate.

(Appellant’s brief at 9.)

       {¶ 11} Upon review, we find Gudorf’s argument to be unpersuasive. Neither the

parties nor a court can create ambiguity in a contract where none exists. “A contract that

is, by its terms, clear and unambiguous requires no real interpretation or construction and

will be given the effect called for by the plain language of the contract.” (Citation omitted)
                                                                                       -7-

Westerfield v. Three Rivers Nursing & Rehab. Ctr., L.L.C., 2d Dist. Montgomery No.

25347, 2013-Ohio-512, ¶ 21. When a contract is clear and unambiguous, a court has no

occasion to consider extrinsic evidence and “cannot apply principles of construction to

vary its terms.” (Citation omitted) Siatis v. Shaw, 2d Dist. Montgomery No. 19207, 2003-

Ohio-616, ¶ 30.

      {¶ 12} In the present case, the trial court reviewed the parties’ employment

agreement and reasoned:

             Section 10[b] of the employment agreement governs the current

      situation where the employee leaves employment and continues

      representation of a client that commenced while subject to the agreement.

      It provides in part “In the event that any client or account of the Company

      who is not a direct client referral of Employee shall, …” (emphasis added).

      Attached to defendant’s motion is the affidavit of the client Devon Ramon

      LeGore who states, in part, under oath “3. I first contacted Dwight Brannon

      of Brannon and Associates approximately June of 2013 regarding my case.

      Dwight Brannon referred me directly to David D. Brannon because of his

      expertise in probate and litigation matters, who was employed by Gudorf

      Law Group., L.L.C.”

             The employment agreement created an exception under these

      circumstances whereby the employee would not be responsible under the

      employment agreement to reimburse the employer for fees collected. The

      plaintiff does not provide any 56(C) evidence to the contrary or to offset the

      LeGore affidavit. Since LeGore was a direct referral to Brannon, Gudorf has
                                                                                            -8-


       no claim for fees from Brannon under the written contract and summary

       judgment is granted to Brannon on the written contract claim.

(May 22, 2017, Summary Judgment Decision at 3-4.)

       {¶ 13} Whether a contract is ambiguous is a legal question that we review de novo.

Hulse v. Hulse, 2d Dist. Greene No. 2013-CA-30, 2014-Ohio-1106, ¶ 15. Here we

conclude that the pertinent language in the employment agreement was clear and

unambiguous. It provided for Gudorf to be compensated if, within one year after the

termination of Brannon’s employment, a Gudorf client “who is not a direct client referral

of Employee” ceased being Gudorf’s client and became Brannon’s client. (Complaint at

Exh. A, ¶ 10b.) As the trial court correctly observed, the uncontroverted evidence

established that the client, Devon LeGore, was directly referred to David Brannon while

he was employed by Gudorf. Therefore, under the clear and unambiguous language of

the employment agreement, LeGore was a direct client referral of employee Brannon.

That being so, Gudorf was not entitled to be compensated when Brannon terminated his

employment and took the client with him. Contrary to Gudorf’s argument on appeal,

nothing in the “direct client referral” language limited it to clients who were referred to the

employee before the employee was hired by Gudorf.

       {¶ 14} The fact that Gudorf presented evidence in the form of deposition testimony

from Ted Gudorf as to his contrary understanding of the employment agreement is

immaterial. As noted above, where contract language is unambiguous, a court may not

consider extrinsic evidence as to the parties’ subjective understanding. Instead, the plain

language of their agreement controls. We find that to be the case here. Accordingly, we

hold that the employment agreement did not entitle Gudorf to be compensated for
                                                                                              -9-


LeGore’s departure because the client was a “direct client referral” of Brannon.1

       {¶ 15} Gudorf next maintains that it is entitled to be compensated even if, as we

have found, LeGore was a direct client referral of Brannon. Gudorf bases this argument

on an alleged oral contract. According to Ted Gudorf, at the time of Brannon’s departure

they orally agreed to a “pro rata” split of any fee Brannon later earned from the client. The

trial court found that such an agreement was precluded by an integration clause in

Brannon’s written employment agreement with Gudorf. On appeal, Gudorf contends the

clause does not apply. Gudorf reasons that the employment agreement only concerned

its entitlement to compensation for a departed client who was not a direct client referral.

If, as here, the client was a direct client referral, then Gudorf claims its entitlement to

compensation was a matter beyond the scope of the employment agreement and was

the proper subject of a separate oral agreement.

       {¶ 16} Once again, we find Gudorf’s argument to be unpersuasive. The integration

clause in the parties’ employment agreement provided in relevant part: “This Agreement

sets forth the entire agreement and understanding of the parties concerning the subject

matter hereof * * * and no modification hereof shall be binding upon the parties hereto

except by written instrument[.]” (Complaint at Exh. A, ¶ 13.) As set forth above, the subject

matter of the employment agreement included compensation for Gudorf if an employee

left the firm and took a client with him. The agreement explicitly provided that it was the

parties’ “entire agreement” and that the law firm was to be compensated if the departing

client was not a direct client referral. It logically follows that the parties did not intend for


1 In light of this determination, we need not address Brannon’s alternative argument that
the exclusive remedy for the breach of contract alleged by Gudorf was an action in
probate court.
                                                                                        -10-


Gudorf to be compensated if the client was a direct client referral. Otherwise, there would

have been no reason for the agreement to make the distinction. Therefore, we conclude

that an oral agreement providing for Gudorf to be compensated for the departure of

LeGore, who was a direct client referral, impermissibly would modify the written

employment agreement and would run afoul of the integration clause. The first

assignment of error is overruled.

       {¶ 17} In its second assignment of error, Gudorf contends the trial court erred in

denying reconsideration of the May 2017 summary judgment ruling in favor of Brannon

on Gudorf’s complaint.

       {¶ 18} The record reflects that Gudorf orally moved for reconsideration of the

adverse summary judgment decision at the conclusion of an October 31, 2017 hearing

on Brannon’s motion for sanctions. (October 31, 2017 Tr. at 202-203.) Gudorf based the

reconsideration request on Brannon’s hearing testimony acknowledging (1) that the

employment agreement did not explicitly mention a departing client who was a direct

client referral and (2) that conversations had occurred during which Ted Gudorf asserted

a right to a pro-rata share of any fee Brannon obtained in the LeGore case. (Id. at 72-96.)

In light of this testimony, Gudorf urged the trial court to reconsider its summary judgment

ruling. In response to Gudorf’s oral motion for reconsideration, the trial court questioned

whether the hearing testimony was proper Civ.R. 56 evidence. (Id. at 206-207.) The trial

court also indicated that it did not intend to revisit summary judgment, but did allow the

parties to file post-hearing briefs. (Id. at 207.) On November 21, 2017, Gudorf followed

up with a memorandum requesting reconsideration. (Doc. #9.) The trial court denied

reconsideration of its summary judgment ruling and also overruled Brannon’s sanctions
                                                                                        -11-


motion in a January 2, 2018 decision and judgment entry. (Doc. #13.) In support of its

decision to deny reconsideration of summary judgment, the trial court reasoned:

              * * * To the extent that the Court was not clear when it stated at the

        hearing that it would not reconsider its decision on the motions for summary

        judgment, the Court specifically overrules any such motion or request. The

        issue of summary judgment reconsideration was not before the Court at the

        hearing on October 31, 2017, as the Court’s entry, after the filing of the

        defendant’s Rule 41(A) notice of dismissal, specifically indicated that the

        trial would go forward on defendant’s motion for sanctions only. To permit

        reconsideration at this hearing, where only the parties testify and only the

        exhibits existing between the parties were admitted, and where no notice of

        the reconsideration was given to the other party, would be patently unfair

        as any additional information discovered could have been easily uncovered

        by appropriate discovery and submitted properly under Civ.R. 56(C). In

        addition, there are other remedies in the civil rules for prosecuting such a

        request.

(Id. at 2.)

        {¶ 19} On appeal, Gudorf challenges the trial court’s statement at the close of the

sanctions hearing that it did not believe Brannon’s hearing testimony constituted proper

Civ.R. 56 evidence. Gudorf stresses that Civ.R. 56(C) permits the use of “transcripts of

evidence” in resolving a summary judgment motion. Gudorf also points out that a trial

court may entertain a motion for reconsideration any time prior to the entry of final

judgment. Gudorf asserts that the trial court’s summary judgment ruling remained
                                                                                           -12-


interlocutory because Brannon’s motion for sanctions remained pending. Therefore,

Gudorf contends the trial court erred “in its refusal to even entertain the motion for

reconsideration.” (Appellant’s brief at 12.)

       {¶ 20} Upon review, we find Gudorf’s argument to be without merit. As an initial

matter, the trial court’s January 2, 2018 written decision reflects that it denied

reconsideration primarily on the basis of fairness. The trial court found it inappropriate to

revisit summary judgment in the context of a hearing that had been limited to sanctions.

Regardless, we have examined the hearing transcript, and we see no arguable basis for

reconsideration even if we accept Gudorf’s claim that the hearing testimony constituted

proper Civ.R. 56 evidence and that the trial court retained jurisdiction to reconsider its

summary judgment ruling.

       {¶ 21} In light of our analysis above, it matters not what Brannon stated during the

hearing about whether LeGore was a “direct client referral,” whether the employment

agreement addressed departing clients who were not direct client referrals, or whether

Ted Gudorf orally had asserted a right to compensation for LeGore’s departure. In

resolving Gudorf’s first assignment of error, we held that LeGore was a “direct client

referral” under the clear and unambiguous terms of the employment agreement. We also

held that the subject matter of the employment agreement included compensation for

Gudorf if an employee left the firm and took a client with him. We noted that the agreement

provided for the law firm to be compensated if the departing client was not a direct client

referral, indicating that the parties did not intend for Gudorf to be compensated if the client

was a direct client referral. Therefore, we concluded that any oral agreement providing

for Gudorf to be compensated for LeGore’s departure impermissibly would modify the
                                                                                        -13-


written agreement in violation of the integration clause. For that reason, it is immaterial

whether Ted Gudorf asserted a right to a pro-rata share of any fee Brannon obtained for

representing LeGore. Even if Brannon orally had agreed to such an arrangement (which

he denied), the oral agreement would not be enforceable in light of the integration clause.

In short, we see nothing in Brannon’s hearing testimony that could have provided the trial

court with any grounds to reconsider its summary judgment decision. Accordingly, the

trial court did not err in denying reconsideration. The second assignment of error is

overruled.

      {¶ 22} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                     .............



WELBAUM, P.J., concurs.

FROELICH, J., dissents:

      {¶ 23} The trial court held that Devin LeGore was a “direct client referral of” David

Brannon and therefore the Gudorf firm was not entitled to any compensation for the work

done by Brannon while at the firm or from the settlement after Brannon left the firm.

Because the contract is ambiguous and there are genuine issues of material fact as to

whether LeGore was “not a direct client referral of Employee,” I would conclude that the

trial court erred in granting summary judgment to Brannon on the claim by Gudorf based

on the employment contract. I would also conclude that the parties’ alleged subsequent

oral agreement addressing Brannon’s representation of LeGore was not barred by the

employment contract.

      {¶ 24} Contracts are to be read as a whole, giving effect to every part of the
                                                                                            -14-

agreement and avoiding any interpretation of one part that will annul another part. E.g.,

Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth., 78 Ohio

St.3d 353, 363, 678 N.E.2d 519 (1997). When reviewing a contract, the court’s primary

role is to ascertain and give effect to the intent of the parties.   Hamilton Ins. Serv., Inc.

v. Nationwide Ins. Cos., 86 Ohio St.3d 270, 273, 714 N.E.2d 898 (1999).           A contract is

ambiguous if its provisions are susceptible to two or more reasonable interpretations.

Johnson v. Johnson, 2d Dist. Miami No. 2010 CA 2, 2011-Ohio-500, ¶ 11. Language in

an agreement need not be totally incomprehensible2 to be ambiguous. E.g., Becker v.

Direct Energy, LP, 2018-Ohio-4134, 112 N.E.3d 978, ¶ 51 (2d Dist.).

       {¶ 25} The ambiguity of the phrase “any client or account of the company who is

not a direct client referral of Employee” is evident when read in context of the entire

employment agreement. The contract provides that all clients of the employee/attorney

are clients of the employer firm and that all papers, files, documents, etc. relating to clients

are the exclusive property of the employer, including the files relating to the firm’s client

the employee took with him. (It is undisputed that LeGore was referred to Brannon after

Brannon joined the Gudorf firm.) And, it requires the employee to devote his entire time,

attention, and energies to the business of the employer-firm. The compensation section

specifically provides for different commissions for clients “brought into” the employer by

the employee and for clients where the employee handles the initial intake and all

subsequent work together with the use of the employer’s staff.

       {¶ 26} The phrase “not a direct client referral of Employee” is under the non-


2See Catholic Health Initiatives-Iowa Corp. v. Sebelius, 841 F.Supp.2d 270, 271 (D.D.C.
2012) (describing a Medicare statute as a law “written by James Joyce and edited by E.E.
Cummings”).
                                                                                            -15-


competition section (section 10) of the employment contract, as opposed to the

compensation section (section 6). The phrase is not defined in the agreement and, in

my view, has no obvious singular meaning when read in light of the entire contract

(particularly the compensation provision regarding clients “brought into” the firm by the

employee-attorney) and with an eye toward giving effect to all terms. Parol evidence,

therefore, can be used to interpret and resolve the ambiguity. See, e.g., Bank of New

York Mellon v. Rhiel, 155 Ohio St.3d 558, 2018-Ohio-5087, 122 N.E.3d 1219, ¶ 12; Illinois

Controls, Inc. v. Langham, 70 Ohio St.3d 512, 639 N.E.2d 771 (1994) (“It is axiomatic

that, where a contract is ambiguous, parol evidence may be employed to resolve the

ambiguity and ascertain the intention of the parties.”).

       {¶ 27} During his deposition, Gudorf was asked if LaGore was a direct client

referral to Brannon.     Gudorf responded, “So based upon what we previously have

discussed, direct client referral means a client for which employee was actually under fee

contract or other documented engagement and actually representing or performing

billable services for the client in the employee’s former practice prior to employment by

Gudorf Law Group.” (Gudorf Depo. at 141.) Gudorf further stated that LaGore became

a client of Brannon’s after Brannon’s employment with the Gudorf firm began, and thus

was not a direct client referral. (Id. at 141-144.)

       {¶ 28} The trial court’s interpretation of “not a direct client referral of employee” or,

in reality, its clarification of its presumed opposite (“direct client referral of employee”) is

not unreasonable; but neither are others. Brannon had one interpretation of the phrase;

Gudorf had another.      The judges of this court also disagree as to the intent of the

contract.   There is certainly some irony in lawyers and judges disagreeing on the
                                                                                            -16-


meaning of a phrase that is ostensibly viewed as having only one meaning; in such a

situation, it is the trier of fact, after hearing from the parties, that should decide what the

parties meant by a phrase the parties used in the context of their professional contract.

       {¶ 29} Second, Brannon argues that any alleged understanding not in writing

between the parties subsequent to the original contact is barred by the integration clause

of the employment agreement.         Since the effect of an integration clause makes a

subsequent agreement no more integrated than in the absence of such a clause, Galmish

v. Cicchini, 90 Ohio St.3d 22, 28, 723 N.E.2d 782 (2000), its presence does not preclude

the parties to the contract from agreeing on what the contract means, provided that their

subsequent understanding does not conflict with the written agreement.

       {¶ 30} The contract demonstrates that there was, as part of the initial employment

contract, an understanding that the employee/attorney could not use the resources of the

employer/firm and take the employer’s client without some sort of compensation. Even

if the “not a direct client referral” language were not ambiguous, it explains only what

happens if the employee-attorney leaves and takes a firm client that is “not a direct client

referral” client from the employer. There is no explanation of how to deal with a client

who is a direct client referral of employee. The presence of a means of compensation

for a client of the firm that is “not a direct client referral of employee” does not necessarily

mean that there was no compensation contemplated by the parties for a firm client that

was a “direct referral.”

       {¶ 31} A subsequent understanding between a law firm and its employee-lawyer

regarding the means of compensating for work done at the firm regarding an unaddressed
                                                                                          -17-


category of clients is arguably not a modification the contract, 3 but a supplemental

interpretation consistent with the original contract.       As stated above, section 9

(ownership of records) provides that all papers, files, documents, etc. relating to clients

are the exclusive property of the employer, including the files relating to the firm’s client

the employee took with him. Further, section 4 (duties) requires the employee to devote

his entire time, attention, and energies to the business of the employer. A finding that

the employer receives no compensation for a direct client referral appears to be at odds

with these provisions and at the least adds to the ambiguity of the entire contract.

       {¶ 32} I would remand for the court to determine from the evidence the intent of

the parties.




Copies sent to:

Richard Hempfling
Matthew C. Schultz
David D. Brannon
Hon. Timothy J. Campbell




3
   To modify means ‘to change in form or character, to alter.’ ” (Citation omitted.) Herbert
v. Porter, 3d Dist. Seneca No. 13-05-15, 2006-Ohio-355, ¶ 25.
