[Cite as Reichert v. Lauren Internatl., Ltd. Edgetech, I.G., Inc., 2012-Ohio-4731.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



GERHARD REICHERT                                   :              JUDGES:
                                                   :              Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant/                       :              Hon. Sheila G. Farmer, J.
        Cross-Appellee                             :              Hon. Julie A. Edwards, J.
                                                   :
-vs-                                               :
                                                   :
LAUREN INTERNATIONAL, LTD.,                        :              Case No. 12AP030019
EDGETECH, I.G., INC.                               :
                                                   :
        Defendants-Appellees/                      :
        Cross-Appellants                           :              OPINION



CHARACTER OF PROCEEDING:                                          Appeal from the Court of Common
                                                                  Pleas, Case No. 2009CV101040


JUDGMENT:                                                         Affirmed/Reversed in Part &
                                                                  Remanded


DATE OF JUDGMENT:                                                 October 9, 2012



APPEARANCES:

For Plaintiff-Appellant                                           For Defendants-Appellees

SCOTT R. AUSTN                                                    WILLIAM S. CLINE
7799 Glenmore Drive                                               JUDE B. STREB
Powell, OH 43065                                                  KRISTEN MOORE
                                                                  Millennium Center-Suite 300
STEPHEN W. FUNK                                                   200 Market Avenue North
222 South Main Street                                             P.O. Box 24213
Akron, OH 44308                                                   Canton, OH 44701-4213
Tuscarawas County, Case No. 12AP030019                                                2

Farmer, J.

      {¶1}   On November 16, 1989, appellant, Gerhard Reichert, and his partner

Michael Glover, principals of a company called Edgetech I.G. Ltd., entered into a

Purchase Agreement with 170619 Canada Ltd. and appellee, now known as Lauren

International, Ltd., wherein 170619 Canada Ltd. agreed to purchase Edgetech I.G. Ltd.

and appellee Lauren agreed to purchase the principals' patent and technology rights to

a foam spacer product marketed as "Super Spacer." In exchange, appellant and Mr.

Glover received royalty rights and employment pursuant to an Employment Agreement

with 170619 Canada Ltd., which later became Edgetech I.G. (1989) Ltd. The Purchase

and Employment Agreements were entered into in Ontario, Canada.

      {¶2}   In 1994, appellee Lauren formed a new wholly-owned subsidiary

corporation in Ohio called Edgetech I.G., Inc., appellee herein.      Appellant began

working for appellee Edgetech that same year.

      {¶3}   A dispute arose between the parties over the calculation of the royalty

payments. On December 15, 2006, appellee Lauren filed an "Application" in Ontario,

Canada, seeking an interpretation of the Purchase Agreement regarding the royalty

payments.    The outcome of this Canadian action found appellee Lauren had been

properly calculating the amounts and it did not owe appellant any additional payments.

The Canadian action ended on October 23, 2008.

      {¶4}   On October 21, 2009, appellant filed a complaint against appellees in the

Court of Common Pleas for Tuscarawas County, Ohio, claiming breach of contract

(Count I), unjust enrichment (Count II), and promissory estoppel (Count III). Appellant

also sought an accounting and production of corporate books and records (Count IV).
Tuscarawas County, Case No. 12AP030019                                                 3


       {¶5}   On December 17, 2009, appellees filed a motion to dismiss Counts I, II,

and III for lack of subject matter jurisdiction as the counts arose under the parties'

Purchase and Employment Agreements and Ontario would have jurisdiction over both

agreements with exclusive jurisdiction over the Employment Agreement.

       {¶6}   On April 19, 2010, appellee Edgetech filed a motion for summary

judgment on Count IV as appellant was not a shareholder and therefore had no right to

inspect its books and records.

       {¶7}   By judgment entry filed September 21, 2010, the trial court dismissed

Count II of the complaint, finding it was governed by the forum selection clause of the

Employment Agreement which was Ontario.

       {¶8}   On September 27, 2010, appellant filed a motion for leave to amend

Count II of the complaint.

       {¶9}   On September 30, 2010, appellees filed a motion for summary judgment

on Counts I and III of the complaint. Appellees claimed Count I was barred by Ontario's

two year statute of limitations for breach of contract claims and Counts I and III were

barred by res judicata based upon the Ontario action.

       {¶10} By judgment entry filed February 10, 2011, the trial court denied

appellant's motion for leave to amend Count II of the complaint, dismissed Counts I and

III, finding appellant's claims were barred under the doctrine of res judicata, and

dismissed Count IV as to Edgetech, finding appellant did not have any statutory rights to

inspect the books and records of appellee Edgetech.

       {¶11} On November 23, 2011, appellee Lauren filed a motion for summary

judgment on Count IV, claiming appellant was seeking to inspect its books and records
Tuscarawas County, Case No. 12AP030019                                             4


for an improper purpose. By judgment entry filed February 29, 2012, the trial court

granted the motion.

          {¶12} Appellant filed an appeal on March 9, 2012 and assigned the following

errors:

                                            I

          {¶13} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON

PLAINTIFF'S CLAIM FOR BREACH OF CONTRACT IN COUNT I OF THE

COMPLAINT."

                                           II

          {¶14} "THE TRIAL COURT ERRED IN DISMISSING COUNT II OF THE

COMPLAINT           BASED   UPON     A   NON-APPLICABLE       1989    EMPLOYMENT

AGREEMENT."

                                           III

          {¶15} "THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION TO

AMEND THE COMPLAINT."

                                           IV

          {¶16} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON

PLAINTIFF'S PROMISSORY ESTOPPEL CLAIM IN COUNT III OF THE COMPLAINT."

                                           V

          {¶17} "THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT

ON COUNT IV OF THE COMPLAINT."

          {¶18} Appellees filed a cross-appeal on March 16, 2012 and assigned the

following errors:
Tuscarawas County, Case No. 12AP030019                                            5


                          CROSS-ASSIGNMENT OF ERROR I

     {¶19} "THE TRIAL COURT ERRED WHEN IT REFUSED TO APPLY THE TWO

YEAR STATUTE OF LIMITATIONS OF THE PROVINCE OF ONTARIO, CANADA,

THE SITUS OF THE EXECUTION AND PERFORMANCE OF THE CONTRACT AND

THE PHYSICAL LOCATION OF THE MAJORITY OF THE CONTRACTING PARTIES,

TO THE BREACH OF CONTRACT CLAIM OF PLAINTIFF WHEN THE EXPRESS

TERMS OF THE CONTRACT SPECIFIED THAT ONTARIO LAW WOULD APPLY

EXCEPT FOR ISSUES RELATING TO ESCROW."

                          CROSS-ASSIGNMENT OF ERROR II

     {¶20} "WHERE AN AGREEMENT FOR THE SALE OF PATENT RIGHTS IS

FUNDAMENTALLY LINKED TO THE AGREEMENT FOR THE EMPLOYMENT OF

THE PATENT RIGHT HOLDER BY THE PURCHASER, AND WHERE THE

AGREEMENTS         MUST    BE   INTERPRETED      AND     APPLIED     TOGETHER   TO

DETERMINE THE RIGHTS OF THE PARTIES, AND BOTH AGREEMENTS

EXPRESSLY STATE THAT THE COURTS OF THE PROVINCE OF ONTARIO,

CANADA HAVE JURISDICTION OVER THE RIGHTS OF THE PARTIES, IT IS ERROR

FOR THE TRIAL COURT TO FAIL TO APPLY THE EXCLUSIVE JURISDICTION

PROVISION     OF    THE     EMPLOYMENT       AGREEMENT        TO     THE   PURCHASE

AGREEMENT. THE TRIAL COURT THEREFORE ERRED WHEN IT FOUND THAT

COUNTS I AND III OF APPELLANT'S COMPLAINT WERE NOT SUBJECT TO THE

EXCLUSIVE JURISDICTION CLAUSE OF THE EMPLOYMENT AGREEMENT OF

APPELLANT."

     {¶21} This matter is now before this court for consideration.
Tuscarawas County, Case No. 12AP030019                                               6


                                         I, IV

       {¶22} Appellant claims the trial court erred in granting summary judgment to

appellees on Counts I and III of the complaint, finding the claims were barred pursuant

to the doctrine of res judicata.

       {¶23} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:

       {¶24} "Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (1) no genuine issue as to any material fact remains to be

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it

appears from the evidence that reasonable minds can come to but one conclusion, and

viewing such evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made. State

ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,

364 N.E.2d 267, 274."

       {¶25} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30

Ohio St.3d 35.

       {¶26} "The doctrine of res judicata involves both claim preclusion (historically

called estoppel by judgment in Ohio) and issue preclusion (traditionally known as

collateral estoppel)." Grava v. Parkman Twp. (1995) 73 Ohio St.3d 379, 381. Claim
Tuscarawas County, Case No. 12AP030019                                                  7


preclusion "prevents a party from litigating a cause of action after a prior court has

rendered a final judgment on the merits of that cause as to that party." Krahn v. Kinney

(1989), 43 Ohio St.3d 103, 107, citing Norwood v. McDonald (1943), 142 Ohio St. 299,

paragraph one of the syllabus. Issue preclusion "precludes the relitigation of an issue

that has been 'actually and necessarily litigated and determined in a prior action.' "

Krahn, at 107, quoting Goodson v. McDonough Power Equipment, Inc. (1983), 2 Ohio

St.3d 193, 195.

       {¶27} It is appellees' position that the Ontario decision estopped appellant from

arguing his claims in Counts I and III of his complaint. Count I of appellant's complaint

was for breach of contract wherein he alleged he was not paid the full amount due

under the Purchase Agreement.        Count III was for promissory estoppel wherein

appellant alleged he had made "concessions" to purchase payments due and owing

during the course of some fourteen years and appellees' president, Kevin Gray,

promised to make up the concessions in the future. Appellant argues he relied on the

promises and is now due monies that were due him as a result of the Ontario decision.

       {¶28} Appellees argue their initiation of the Ontario action required appellant to

defend the claims or be forever barred. Upon review of the October 22, 2007 Ontario

Superior Court of Justice decision, we find Justice Smith delineated the issues as

follows:

       {¶29} "The Court must therefore interpret the meaning of s. 2.02 (b) of the

Agreement whereby Lauren acquired the assets of Edgetech I.G. Ltd. ('Edgetech') and

the Principal Patent Rights from Michael Glover and Gerhard Reichert in 1989, and

decide the following issues:
Tuscarawas County, Case No. 12AP030019                                                    8


          {¶30} "(a) Does Lauren's obligation to make the royalty payment of 1% of the

gross monthly sales of 'Super Spacer' Products in a jurisdiction terminate when the

patent for 'Super Spacer' Products expires in that jurisdiction?

          {¶31} "(b) Is Lauren required to continue to make royalty payments to Reichert,

based on the gross monthly sales of 'Super Spacer' Products in all jurisdictions

worldwide, as long as there remains at least one valid Schedule H patent in any

jurisdiction in the world?

          {¶32} "(c) Is Lauren required to continue to make the royalty payments to

Reichert until the expiry of any patent registered for an improvement or extension to any

of the Schedule H patents for 'Super Spacer' Products developed and registered after

the sale had been completed and while Reichert was employed by Edgetech (1989)?"

          {¶33} The claims in Counts I and III were not the subject matter of the Ontario

action.     The Ontario Superior Court of Justice order dated October 22, 2007 was

restricted to the expiration of the patents and the royalty payments owed to appellant:

          {¶34} "1. THIS COURT ORDERS that Lauren is entitled to stop including sales

of insulating foam spacers for insulated glazing units, also known as 'Super Spacer'

Products, in the United States to calculate the royalty payments due the Reichert

pursuant to Section 2.02(b) of the Agreement of Purchase and Sale dated December 1,

1989 (the 'Agreement'), as of September 22, 2006, the date upon which the patent for

'Super Spacer' Products (U.S. Patent 4,831,799 & U.S. Patent 5,007,217) expired in the

United States.

          {¶35} "2. THIS COURT FURTHER ORDERS that the patents developed by

Reichert, while he was an employee of either Edgetech I.G. Ltd. or Edgetech I.G. (1989)
Tuscarawas County, Case No. 12AP030019                                                    9


Ltd., do not constitute extension patents within the meaning of section 2.02(b) of the

Agreement and does not extend the time period that Lauren is required to make

monthly royalty payments to Reichert.

       {¶36} "3. THIS COURT FURTHER ORDERS that Lauren is not required to pay

Reichert an aggregate amount equal to 1% (formerly 2%) of Lauren's Monthly Gross

Sales of 'Super Spacer' Products in those jurisdictions where the patent rights, which

were included in Schedule H of the Agreement and defined as the Principals' Patent

Rights, have expired."

       {¶37} It is true, as appellees attest, in appellant's "Factum" and affidavit

prepared for the Ontario action, appellant alluded to the "concessions" made in

exchange for future royalty payments from increased sales. This was in support of

appellant's view that both he and appellee Lauren expected the royalties to be ongoing

regardless of the expiration of the patent rights, thereby producing extrinsic evidence to

bolster his interpretation of the royalty payment provisions of the Purchase Agreement.

No claim was made that funds were shorted as a result of the concessions.

       {¶38} Given the wording and arguments within appellant's Factum and affidavit,

it was clear to appellant that the "concessions" were not compensable at the time of the

filings, but were proof of the ongoing right to royalties regardless of the length of the

patent rights. Therefore, it is appellant's position that his claims did not exist until the

decision by the Ontario court that cut short the royalties received on sales. We note

appellant filed the complaint sub judice within two years of the Ontario order.

       {¶39} Given the totality of the evidence, the wording of appellees' Application to

the Ontario Superior Court of Justice (attached to appellant's October 15, 2010
Tuscarawas County, Case No. 12AP030019                                                 10


memorandum in opposition to motion for summary judgment as Exhibit A) suggests the

sole issue was the right of appellees to terminate royalty payments under Section 2.02

of the Purchase Agreement:

      {¶40} "e. In accordance with Section 2.02(b) and Section 2.04 of the Agreement,

upon the expiry of the patents comprising the Principals' Patent Rights in the

jurisdictions as noted in subparagraph (d) above, Lauren is no longer obligated to

include, in the calculation of 1% of Monthly Gross Sales by Lauren of Super Spacer

Products, sales of Super Spacer Products in those jurisdictions.

      {¶41} "f. Reichert has objected to the reduction of the monthly amount he is to

receive from the Applicants on the basis that the Applicant's interpretation of Section

2.02(b). Reichert claims entitlement to payment of 1% of Monthly Gross Sales by the

Applicant of all 'Super Spacer' Products until all of the patents comprising of the

Principals' Patent Rights have expired.

      {¶42} "g. There is a dispute over the proper interpretation of Section 2.02(b) of

the Agreement."

      {¶43} Based upon these pleadings and their interpretation, we find neither

collateral estoppel nor res judicata bars the litigation of Count I and III of appellant's

complaint. Counts I and III are re-instated.

      {¶44} Assignments of Error I and IV are granted.

                                               II

      {¶45} Appellant claims the trial court erred in granting appellees' motion to

dismiss Count II, finding the Ontario court had exclusive jurisdiction over any

Employment Agreement claims based upon the forum selection clause therein.
Tuscarawas County, Case No. 12AP030019                                                 11


       {¶46} Appellees filed a motion to dismiss Count II pursuant to Civ.R. 12(B)(1),

lack of subject matter jurisdiction. The standard of review for a dismissal for want of

subject matter jurisdiction pursuant to Civ.R. 12(B)(1) is whether any cause of action

cognizable by the forum has been raised in the complaint. Prosen v. Dimora (1992), 79

Ohio App.3d 120; State ex rel. Bush v. Spurlock (1989), 42 Ohio St.3d 77.            This

determination involves a question of law that we will review de novo. Shockey v. Fouty

(1995), 106 Ohio App.3d 420. Under a de novo analysis, we must accept all factual

allegations of the complaint as true, and all reasonable inferences must be drawn in

favor of the nonmoving party. Byrd v. Faber (1991), 57 Ohio St.3d 56. In determining

whether the plaintiff has alleged a cause of action sufficient to withstand a Civ.R.

12(B)(1) motion to dismiss, a court is not confined to the allegations of the complaint

and may consider material pertinent to the inquiry without converting it into a motion for

summary judgment. Southgate Dev. Corp. v. Columbia Gas Transm. Corp. (1976), 48

Ohio St.2d 211, paragraph one of the syllabus.

       {¶47} Appellees' December 17, 2009 motion to dismiss argued Section 1.04 of

the Employment Agreement (attached to appellee's motion as Exhibit 2) vests exclusive

jurisdiction in the Ontario courts:

       {¶48} "Section 1.04 Laws of Ontario

       {¶49} "This Agreement shall be governed by and construed in accordance with

the laws in force in the Province of Ontario and shall be treated in all respects as an

Ontario contract. The parties submit to the jurisdiction of the Courts of Ontario with

respect to any dispute, claim or other matter arising under this Agreement and the
Tuscarawas County, Case No. 12AP030019                                                 12


Courts of Ontario shall have exclusive jurisdiction with respect to any such dispute,

claim or other matter."

       {¶50} Appellant argues the 1989 Employment Agreement signed by 170619

Canada Ltd., which later became Edgetech I.G. (1989) Ltd., governed his employment

in Canada, but not in the United States. Appellant further argues the trial court erred in

concluding his present employer, appellee Edgetech, is closely related to the original

obligator, 170619 Canada Ltd./Edgetech I.G. (1989) Ltd, as to make the provisions of

the Employment Agreement enforceable.

       {¶51} Count II of appellant's complaint is a claim for unjust enrichment.       To

recover under a theory of unjust enrichment, the complainant must prove: 1) he/she

conferred a benefit on the defendant; 2) the defendant had knowledge of the benefit;

and 3) the defendant retained the benefit under circumstances where it would be unjust

for him/her to retain that benefit without payment.     Hambleton v. R.G. Barry Corp.

(1984), 12 Ohio St.3d 179.

       {¶52} Appellant's unjust enrichment claim was based upon the fact that he took

annual salaries far below market value for his services for the years 1989 to 2006 as an

employee of appellee Edgetech and he made the concessions on salary based upon his

Purchase Agreement with appellees of 1% of the profits.

       {¶53} The unjust enrichment claim arises out of the Employment Agreement and

is subject to the provisions of the agreement if it is enforceable. " '[A]rising under'

means 'stemming from' or 'originating in'.      See Black's Law Dictionary 102 (7th

ed.1999)." Harris v. Allstate Insurance Company (C.A.10, 2002), 300 F.3d 1183, 1190.
Tuscarawas County, Case No. 12AP030019                                                 13


      {¶54} We note in Article 2 of the Employment Agreement under Section 2.02,

Remuneration, appellant was to be paid "dividends declared on shares of Lauren***held

by or on behalf of the Executive***and of salary paid to the Executive***provided that, in

no event, will the total remuneration payable to the executive hereunder exceed

$40,000."   The Employment Agreement, signed by appellant and 170619 Canada

Ltd./Edgetech I.G. (1989) Ltd., is an attachment to the Purchase Agreement signed by

appellant, appellee Lauren, Edgetech G.I. Ltd., 170619 Canada Ltd., and Michael

Glover. The Purchase Agreement includes Section 6.06, Offer of Employment, and

Schedule M, which lists appellant as "Vice President" for a remuneration of $20,000.

We note it does not state which company he is a vice president of. The "Buyer" who

agreed to offer employment in Section 6.06 is 170619 Canada Ltd./Edgetech I.G.

(1989) Ltd. as set forth in the Purchase Agreement.

      {¶55} Despite the now claimed non-existence of 170619 Canada Ltd./Edgetech

I.G. (1989) Ltd., we conclude the Employment Agreement is still enforceable and a

claim for unjust enrichment under the Employment Agreement is controlled by the forum

selection clause, Ontario.

      {¶56} The trial court did not err in granting appellees' motion to dismiss Count II

of the complaint.

      {¶57} Assignment of Error II is denied.

                                            III

      {¶58} Appellant claims the trial court erred in denying his motion to amend the

complaint as to Count II.
Tuscarawas County, Case No. 12AP030019                                                   14


        {¶59} Civ.R. 15(A) governs amendments and states the following in pertinent

part:

        {¶60} "A party may amend his pleading once as a matter of course at any time

before a responsive pleading is served or, if the pleading is one to which no responsive

pleading is permitted and the action has not been placed upon the trial calendar, he

may so amend it at any time within twenty-eight days after it is served. Otherwise a

party may amend his pleading only by leave of court or by written consent of the

adverse party. Leave of court shall be freely given when justice so requires."

        {¶61} The decision whether to allow a party leave to amend a complaint lies

within the trial court's sound discretion. National Bank of Fulton County v. Haupricht

Bros. (1988), 55 Ohio App.3d 249. In order to find an abuse of discretion, we must

determine the trial court's decision was unreasonable, arbitrary or unconscionable and

not merely an error of law or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d

217.

        {¶62} In its judgment entry filed February 10, 2011, the trial court denied

appellant leave to amend his complaint, finding the following:

        {¶63} "The Court FINDS that permitting Plaintiff to amend his Complaint in

response to the Court's Judgment Entry granting Defendants' Motion to Dismiss as to

Count II of Plaintiff's Complaint would result in undue prejudice to Defendants."

        {¶64} Appellant filed his complaint on October 21, 2009.        On December 17,

2009, appellees filed their motion to dismiss for lack of subject matter jurisdiction as the

counts in the complaint were subject to the exclusive jurisdiction of Ontario. More than

nine months later, the trial court granted the motion to dismiss as to Count II. See,
Tuscarawas County, Case No. 12AP030019                                                   15


Judgment Entry filed September 21, 2010. Appellant filed his motion for leave to amend

six days later, seeking to clarify Count II by distinguishing between two distinct

Edgetech entities, Edgetech I.G. (1989) Ltd. and appellee Edgetech. Appellant argues

had he been able to do so, it would have been clear that the allegations in Count II did

not relate to his employment with the Canadian Edgetech.

       {¶65} In reading the trial court's September 21, 2010 judgment entry wherein it

dismissed Count II, it is clear the trial court understood the two separate Edgetech

entities and was aware that appellant's claims pertained to his employment with

appellee Edgetech in Ohio.

       {¶66} Because appellant waited over nine months to ask for leave to amend

after appellees raised the issue of subject matter jurisdiction, we do not find the trial

court acted unreasonably, arbitrarily or unconscionably in denying appellant's motion for

leave to amend.

       {¶67} Assignment of Error III is denied.

                                             V

       {¶68} Appellant claims the trial court erred in dismissing Count IV of his

complaint.

       {¶69} In its judgment entry filed September 21, 2010, the trial court stated the

following in dismissing Count IV:

       {¶70} "The Court FINDS that Plaintiff is not a shareholder of Edgetech and does

not have a statutory right to inspect the records of Edgetech.

       {¶71} "The Court FINDS that based upon its ruling regarding Defendants' Motion

for Summary Judgment on Counts I and III of Plaintiff's Complaint, Plaintiff is not entitled
Tuscarawas County, Case No. 12AP030019                                                  16


to an accounting from Edgetech for the sale of Super Spacer products because the

Ontario Superior Court of Justice already determined that Lauren does not owe Reichert

for the sale of Super Spacer products.

       {¶72} "The Court further FINDS that no genuine issues of material fact remain

regarding whether Plaintiff has a statutory right to inspect the records of Edgetech or is

entitled to an accounting from Edgetech of all sales of Super Spacer products.

       {¶73} "The Court FINDS, therefore, that Defendant Edgetech I.G., Inc.'s Motion

for Summary Judgment on Count IV of Plaintiff's Complaint should be granted."

       {¶74} Based upon our ruling on Counts I and III, Count IV is re-instated.

       {¶75} Assignment of Error V is granted.

                           CROSS-ASSIGNMENT OF ERROR I

       {¶76} Appellees claim appellant's action is barred by the two year statute of

limitations for a suit on contract in Ontario.

       {¶77} In Assignments of Error I and IV, we found the actual claims did not arise

until there was a definitive ruling by the Ontario courts on the meaning of Section 2.02

of the Purchase Agreement. Further, the trial court found the applicable statute of

limitations should be Ohio's fifteen years (R.C. 2305.06). The Purchase Agreement

included a very limited governing law section:

       {¶78} "Section 1.06 Governing Law. Save and except with respect to matters of

Ohio law which may apply to the terms of the escrow described in Section 2.02 of this

Agreement, this Agreement shall be governed by and construed in accordance with the

laws in force in the Province of Ontario and shall be treated in all respects as an Ontario

contract. The parties submit to the jurisdiction of the courts of Ontario with respect to
Tuscarawas County, Case No. 12AP030019                                                 17


any dispute, claim or other matter arising under this Agreement and the courts of

Ontario shall have non-exclusive jurisdiction with respect to any such dispute, claim or

other matter."

       {¶79} Upon review, we fail to find any error in denying appellees' statute of

limitations issue.

       {¶80} Cross-Assignment of Error I is denied.

                          CROSS-ASSIGNMENT OF ERROR II

       {¶81} Appellees claim the trial court erred in not granting their motion to dismiss

Counts I and III under the exclusive jurisdiction provision of the Employment

Agreement.

       {¶82} As we noted in Cross-Assignment of Error I, the governing law and

jurisdictional provision of the Purchase Agreement is much more limited and less

restrictive than the provision in the Employment Agreement, Section 1.04, Laws of

Ontario, cited supra under Assignment of Error II.

       {¶83} Upon review, we find these more than subtle differences to be persuasive,

and we concur with the trial court's analysis.

       {¶84} Cross-Assignment of Error II is denied.
Tuscarawas County, Case No. 12AP030019                                              18


       {¶85} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio

is hereby affirmed in part and reversed in part.

By Farmer, J.

Hoffman, P.J. and

Edwards, J. concur.




                                             _s / Sheila G. Farmer______________



                                             _s / William B. Hoffman____________



                                             _s / Julie A. Edwards_______________

                                                         JUDGES

SGF/sg 831
[Cite as Reichert v. Lauren Internatl., Ltd. Edgetech, I.G., Inc., 2012-Ohio-4731.]


                IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT



GERHARD REICHERT                                         :
                                                         :
        Plaintiff-Appellant/                             :
        Cross-Appellee                                   :
                                                         :
-vs-                                                     :            JUDGMENT ENTRY
                                                         :
LAUREN INTERNATIONAL, LTD.,                              :
EDGETECH, I.G., INC.                                     :
                                                         :
        Defendants-Appellees/                            :            CASE NO. 12AP030019
        Cross-Appellants


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Tuscarawas County, Ohio is affirmed in part

and reversed in part, and the matter is remanded to said court for further proceedings

consistent with this opinion. Costs to be divided equally between appellant, appellee

Lauren International, Ltd., and appellee Edgetech, I.G., Inc.




                                                         s / Sheila G. Farmer______________



                                                         _s / William B. Hoffman____________



                                                         _s / Julie A. Edwards_______________

                                                                      JUDGES
