                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0820n.06

                                      Nos. 13-3821/3853


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

LAWYERS TITLE COMPANY, LLC,                            )                      FILED
                                                       )                  Oct 29, 2014
       Plaintiff-Appellant/Cross-Appellee              )             DEBORAH S. HUNT, Clerk
       (13-3821 & 13-3853),                            )
                                                       )
v.                                                     )
                                                       )      ON APPEAL FROM THE
KINGDOM TITLE SOLUTIONS, INC.,                         )      UNITED STATES DISTRICT
                                                       )      COURT FOR THE
       Defendant-Appellee (13-3821),                   )      NORTHERN DISTRICT OF
       Defendant (13-3853),                            )      OHIO
and                                                    )
                                                       )
SARAH BITTINGER,                                       )
                                                       )
       Defendant-Appellee/Cross-Appellant              )
       (13-3821 & 13-3853).


BEFORE:       BOGGS, BATCHELDER, and WHITE, Circuit Judges

       ALICE M. BATCHELDER, Circuit Judge. Appellant Lawyers Title Company, LLC

(“Lawyers”) appeals the district court’s award of partial summary judgment and judgment as a

matter of law to Appellee Sarah Bittinger and summary judgment to Appellee Kingdom Title

Solutions, Inc. (“Kingdom”), on claims related to the decline in revenue of Lawyers’s Medina,

Ohio office. Bittinger cross-appeals, arguing that the amount of the jury’s damages award on

Lawyers’s surviving claims is excessive. We affirm the district court’s grant of partial summary

judgment and judgment as a matter of law to Bittinger, its grant of summary judgment to




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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


Kingdom, and its denial of Bittinger’s renewed motion for judgment as a matter of law seeking a

reduction in damages.



                                                I.

        Lawyers provides title insurance and escrow services for real estate transactions. Sarah

Bittinger was Lawyers’s Medina, Ohio, office manager, and Debbie Frattaroli was the office’s

escrow officer. Neither employee’s employment agreement contained a non-compete provision.

The district court found that

        title insurance services are substantially similar across the industry. Like
        attorneys, title insurance salespeople often have a client base who will follow
        them from employer to employer. Customers look for service and service is more
        directly associated with employees rather than with title insurance underwriters.

Accordingly, Lawyers refers to Bittinger and Frattaroli as “revenue-attached employees.”

        Lawyers’s competitor—Kingdom—decided to make inroads into the insurance and

escrow services business in Medina. To that end, Kingdom began recruiting Bittinger to run

Kingdom’s new Medina office. In April 2012, while Bittinger was still employed by Lawyers,

Kingdom’s president Brian Moore offered Bittinger a job as a sales representative. Bittinger

suggested that Moore consider hiring Frattaroli too, explaining that Frattaroli was the “great

escrow officer” Kingdom needed. Moore suggested that Bittinger could offer employment to

Frattaroli.

        When Bittinger told Frattaroli that she was considering leaving Lawyers for Kingdom,

Frattaroli was upset, ostensibly because a significant amount of business would leave with

Bittinger. Frattaroli refused to leave Lawyers, so Bittinger told Moore that she was not yet ready

to “abandon ship.”




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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


        Bittinger and Moore met again in May 2012; during that meeting Moore outlined the

details of the job offer and officially offered a job to Bittinger. Bittinger reiterated that she

wanted Frattaroli to come with her to Kingdom, and Moore told Bittinger that she could offer

Frattaroli a position. Frattaroli again declined the position. Although the record is unclear on

this point, it appears that Bittinger also declined the position after Frattaroli’s refusal.

        Moore soon offered Bittinger an even more lucrative opportunity, which included an

equity stake in Kingdom’s Medina office. He reiterated that Bittinger could offer a job to

Frattaroli. Sometime during June 5–7 and before Bittinger accepted Kingdom’s offer, Bittinger

offered Frattaroli a job with an even higher salary, and this time Frattaroli “accepted right there

on the spot.” On June 7, 2012, Bittinger signed an operating agreement with Kingdom.

        Bittinger and Frattaroli continued their employment with Lawyers through June 22, 2012.

When viewed in the light most favorable to Lawyers, the record reveals that during her period of

dual employment, Bittinger transferred a number of purchase agreements from Lawyers to

Kingdom, told several repeat customers of her impending departure, and deleted certain emails

and contacts from her Lawyers computer prior to leaving.

        The district court granted Kingdom’s motion for summary judgment on all of Lawyers’s

claims. The district court also granted Bittinger’s motion for summary judgment except on

Lawyers’s claim for tortious interference with business relations, and breach of her duties for

“disloyal acts between June 6, 2012 and June 22, 2012 and any damages proximately caused by

those acts.” These claims proceeded to trial.

        At trial, the district court sustained an objection to testimony Lawyers elicited about

Lawyers’s lost profits between September and December 2012. The district court reasoned that

such testimony was “outside the timeline for these loans, and beyond that I think it is just



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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


testimony about damages he believes may have flowed from the fact that she exercised the, the

right she had to leave the office, because she had gone.” The court, however, did permit

Lawyers to submit a written offer of proof with respect to these damages.

        The district court sua sponte deleted a punitive-damages jury instruction, stating: “I don’t

think there is sufficient evidence to support giving it to the jury, so I intentionally deleted the

punitives. I don’t think there is a sufficient showing of malice to support the request for a

punitive damage instruction.” Lawyers objected.

        The jury found Bittinger liable and awarded Lawyers $13,028.00. It also found in favor

of Frattaroli.

        After the verdict, Bittinger renewed her motion for judgment as a matter of law, arguing

that that the jury’s verdict should be capped at the value of the six contracts with which the jury

could have found she interfered ($3,263.00), and that the additional damage award was without

evidentiary support. The court denied Bittinger’s motion, stating that although “the evidence

supporting a higher award is significantly more vague,” “[t]he jury could have concluded that

some portion of those lost profits was attributable to other tortious conduct by Bittinger, such as

warehousing of orders or comments she made encouraging customers not to do business with

Lawyers while she was still employed there.”

        Lawyers appeals the adverse summary judgment rulings, and Bittinger cross-appeals the

district court’s denial of her renewed motion for judgment as a matter of law. Lawyers does not

appeal the judgment as it applies to Frattaroli.

                                                   II.

        We review de novo a district court’s summary judgment order. See Lexicon, Inc. v.

Safeco Ins. Co. of Am., Inc., 436 F.3d 662, 670 (6th Cir. 2006); see also Schultz v. Newsweek,



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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


Inc., 668 F.2d 911, 917 (6th Cir. 1982) (“Summary judgment practice in federal district courts is

controlled by Rule 56, unaffected by state procedural rules.”). Summary judgment is appropriate

only “if the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The burden is generally on

the moving party to show that no genuine issue of material fact exists, but that burden may be

discharged by ‘showing—that is, pointing out to the district court—that there is an absence of

evidence to support the nonmoving party’s case.’” Bennett v. City of Eastpointe, 410 F.3d 810,

817 (6th Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

       When sitting in diversity, we apply the forum state’s standard of review “when a Rule 50

challenge is mounted to the sufficiency of the evidence supporting a jury’s findings.” K & T

Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 176 (6th Cir. 1996). Thus, we review de novo the

district court’s denial of Bittinger’s renewed motion for judgment as a matter of law. See Reeves

v. Healy, 950 N.E.2d 605, 615 (Ohio 2011) (“Because a directed verdict tests only the

sufficiency of the evidence, it presents a question of law that appellate courts review de novo.”).

                                                A.

       The district court did not err by limiting the timeframe for which the jury was permitted

to consider Bittinger’s breach of fiduciary duty and duty of loyalty claims. The district court

allowed the jury only to hear evidence that Bittinger’s actions from June 6, 2012—the date she

signed the operating agreement with Kingdom—through June 22, 2012—the date her

employment with Lawyers concluded—breached her duties and proximately damaged lawyers.

       Under Ohio law, “A breach of fiduciary duty claim has three elements: (1) the existence

of a duty arising from a fiduciary relationship, (2) a failure to observe such duty, and (3) an

injury proximately resulting therefrom.” In re Nat’l Century Fin. Enters., Inc., 504 F. Supp. 2d



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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


287, 310 (S.D. Ohio 2007); see also Strock v. Pressnell, 527 N.E.2d 1235, 1243 (Ohio 1988).

Assuming the existence of such duties,1 Bittinger arguably breached them before June 6, 2012 by

repeatedly offering Frattaroli a job on behalf of a competitor, although at this time Bittinger

herself had no employment relationship with Kingdom. Lawyers uses what it calls an “excluded

causation theory” in an attempt to explain how damages proximately resulted from Bittinger’s

pre-June 6 conduct.           Lawyers posits that Frattaroli would not have left Lawyers but for

Bittinger’s improper solicitation, and Bittinger herself would not have left had Frattaroli not

joined her. Absent Bittinger’s breach, therefore, the revenue-attached employees Bittinger and

Frattaroli would have stayed at Lawyers, and their customers would have stayed too. Lawyers

argues that the decline in Lawyers’s revenue in the months following Bittinger’s and Frattaroli’s

departure is damages attributable to this breach.

       We agree with the district court that Lawyers cannot, as a matter of law, show that

Bittinger’s breach proximately caused its losses.                    Lawyers did not include a non-compete

provision in Bittinger’s employment agreement, and Bittinger was therefore free to leave

Lawyers and solicit her former customers at any time.                          Lawyers cannot show that these

customers left because Bittinger breached her duties when an equally plausible inference is that

these customers left because Bittinger solicited them after she left Lawyers.                                 Bittinger’s

resignation from Lawyers on June 22 broke the chain of causation; customers did not begin

leaving Lawyers until after Bittinger left Lawyers, when Bittinger was entitled to solicit them.

Because Bittinger was a revenue-attached employee, the customers likely would have left

anyway. Lawyers’s chain of causation is too attenuated and speculative to withstand summary

judgment.



       1
           We, like the district court, decline to decide whether a fiduciary relationship existed in this case.

                                                             6
Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


       Lawyers argues that we adopted the functional equivalent of its “excluded causation

theory” in Chicago Title Insurance Corp. v. Magnuson, 487 F.3d 985 (6th Cir. 2007), where we

affirmed a jury verdict against former Chicago Title executive James Magnuson who breached a

non-compete provision by working for a competitor after leaving Chicago Title. Although

Magnuson’s employment agreement contained a non-compete provision, Lawyers questions the

relevance of this distinction because even Bittinger was forbidden from competing with Lawyers

during her employment and the solicitation of Frattaroli occurred while Bittinger was employed

by Lawyers.

       In Chicago Title, damages were proximately caused by Magnuson’s breach of his non-

compete agreement because Magnuson solicited his former co-workers while under the non-

compete and customers left while Magnuson was under the non-compete. In this case, however,

the damages are attenuated and speculative—Bittinger solicited Frattaroli while still employed

by, and therefore not free to compete with, Lawyers, but the customers who eventually left

Lawyers did so after Bittinger was no longer employed by, and therefore was free to compete

against, Lawyers.   The district court permitted the jury to assess proximate causation and

damages for breach of Bittinger’s duties while Bittinger was employed by Lawyers; Chicago

Title requires nothing more.

       Similarly, Security Title Agency, Inc. v. Pope, 200 P.3d 977 (Ariz. Ct. App. 2008), is

distinguishable because the seventy-percent loss in Security Title’s revenue was traceable to

actions taken by a branch manager and her associates during their employment with Security

Title; customers were contacted, files were copied and taken home, and commitments were

received from repeat customers that they would leave Security Title. Id. at 986–87. Lawyers

asks that we extend Security Title by attributing the success of Bittinger’s proper post-



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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


employment competition to Bittinger’s improper solicitation of Frattaroli, which occurred

months before they left Lawyers. This we cannot do.

        Had Lawyers included a post-employment non-compete provision in Bittinger’s

employment agreement this would be a different case. But it did not, and Lawyers has failed as a

matter of law to show that its damages proximately resulted from Bittinger’s breach of her

duties. The district court did not err by limiting the jury’s consideration of Bittinger’s breach of

her duties to conduct that occurred while Bittinger was working for Lawyers and Kingdom

simultaneously.

                                                      B.

        The district court did not err by granting Bittinger summary judgment on Lawyers’s

tortious-interference-with-contract claims. Lawyers appeals the summary judgment order only

as to two of the contracts—the Avon Lake Road transaction and the State Route 43 transaction.2

Lawyers claims that Bittinger opened these transactions at Lawyers and then transferred them to

Kingdom for closing.

        A claim for tortious interference with contract must show: “(1) the existence of a

contract, (2) the wrongdoer’s knowledge of the contract, (3) the wrongdoer’s intentional

procurement of the contract’s breach, (4) the lack of justification, and (5) resulting damages.”

Fred Siegel Co., L.P.A. v. Arter & Hadden, 707 N.E.2d 853, 858 (Ohio 1999).                          It is not

necessary to decide whether residential real estate purchase agreements are the type of contract

that can give rise to a tortious-interference-with-contract claim because Lawyers is neither a



        2
           Lawyers also complains that the district court improperly ordered summary judgment as to those two
contracts sua sponte. Although Bittinger’s memorandum in support of her motion for summary judgment conceded
that “factual disputes may exist,” making “summary judgment on liability for them unlikely,” Bittinger argued
elsewhere in that memorandum that “[s]ummary judgment should therefore be granted in Defendants’ favor as to all
Plaintiff’s tortious interference claims.” At the very least, Lawyers was given sufficient advance notice of
Bittinger’s claims to make sua sponte summary judgment proper. See Celotex Corp., 477 U.S. at 326.

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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


party to these agreements nor a third-party beneficiary with contract rights. See Westwinds Dev.

Corp. v. Outcalt, No. 2008-G-2863, 2009 WL 1741978, at *3 (Ohio Ct. App. June 19, 2009) (“In

Ohio, only a party to a contract or an intended third-party beneficiary may bring an action on a

contract.”).

         The semi-legible purchase agreements in the record are signed by both buyer and seller.

Lawyers is designated as the escrow agent in the State Route 43 purchase agreement, and

Lawyers is designated as the title insurance provider in the Avon Lake Road purchase agreement

and accompanying documents. Neither of these agreements has been signed or agreed to by

Lawyers. There is no indication from the record that Lawyers even knew that it had been

designated in these agreements.

         In Ohio “it is well-established that there are three classes of simple contracts: express,

implied in fact, and implied in law.”      Legros v. Tarr, 540 N.E.2d 257, 263 (Ohio 1989).

Although the lack of a traditional offer and acceptance paradigm means that Lawyers was not a

party to an express contract, “[i]n contract[s] implied in fact the meeting of the minds,

manifested in express contracts by offer and acceptance, is shown by the surrounding

circumstances which made it inferable that the contract exists as a matter of tacit understanding.”

Id. Yet even implied-in-fact contracts must have all the elements of an express contract. Id.

These include “an offer, an acceptance, contractual capacity, consideration (the bargained-for

legal benefit or detriment), a manifestation of mutual assent, and legality of object and of

consideration.” Lake Land Emp. Grp. of Akron, LLC v. Columber, 804 N.E.2d 27, 31 (Ohio

2004).    In implied-in-fact contracts, “a plaintiff must demonstrate that the circumstances

surrounding the parties’ transaction make it reasonably certain that an agreement was intended.”

Stepp v. Freeman, 694 N.E.2d 510, 514 (Ohio Ct. App. 1997) (citation omitted).



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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


       Mark Leszczynski, Lawyers’s Indiana and Ohio manager, testified that “[g]enerally,

orders for such services are placed by transmitting a real estate sales contract to Lawyers. Once

transmitted to Lawyers, these agreements constitute valid contracts for title and escrow services.”

Leszczynski Decl. ¶¶ 7–8. Lawyers also argues that Bittinger “conflates a contract to purchase

title insurance with the title insurance policy itself, which is also a contract. The contracts at

issue in this case, are contracts to purchase title insurance and escrow services . . . .” Reply Br.

15.   Leszczynski’s testimony provided only legal conclusions about the nature of these

agreements, which is the only testimony Lawyers provides related to their legal status. Lawyers

has the burden of demonstrating the existence of a contract to which it has rights of enforcement.

Nowhere has Lawyers alleged—let alone provided facts to support—the necessary formalities,

including acceptance, consideration, and mutual assent. The facts presented may invite recovery

on a quasi-contract claim, but Lawyers has not pleaded such a claim. Lawyers is not a party to

an express contract.

       Nor is Lawyers a third-party beneficiary. Only intended beneficiaries have enforceable

contract rights in Ohio. In Norfolk & Western Co. v. United States, 641 F.2d 1201, 1208 (6th

Cir. 1980), we cited with approval a district court’s distinction between intended and incidental

beneficiaries: “[T]he mere conferring of some benefit on the supposed beneficiary by the

performance of a particular promise in a contract was insufficient; rather, the performance of that

promise must also satisfy a duty owed by the promisee to the beneficiary.” See also Westwinds

Dev. Corp., 2009 WL 1741978, at *3 (“For a third-party beneficiary to be an intended

beneficiary, the contract must have been entered into by the parties directly or primarily for the

benefit of that person.”). In this case, the purchase agreements were not entered into by the




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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


buyer and seller directly for the benefit of Lawyers even if Lawyers would have received some

ancillary benefit.

         Thus, Lawyers cannot maintain a claim for tortious interference with contract because it

was neither a party to these agreements nor a third-party beneficiary.3 The district court did not

err by granting Bittinger summary judgment on these claims. See generally Phillips v. Dayton

Power & Light Co., 637 N.E.2d 963, 965 (Ohio Ct. App. 1994) (“Since the reviewing court must

independently determine, as a matter of law, whether summary judgment was properly rendered

based upon the record made up in the trial court, it is legally immaterial whether the trial court

has provided a sound analysis . . . .”).

                                                         C.

         The district court refused to instruct the jury as to punitive damages for Bittinger’s

conduct because it held there was an insufficient showing of malice to support the instruction.4

The district court’s ruling after the close of the evidence effectively granted judgment as a matter

of law as to punitive damages. See Fed. R. Civ. P. 50(a)(1). Because we are sitting in diversity,

we use Ohio’s standard for judgment as a matter of law. See Estate of Riddle ex rel. Riddle v. S.

Farm Bureau Life Ins. Co., 421 F.3d 400, 408 (6th Cir. 2005). Under Ohio law, the evidence

must be “construed most strongly in favor of the non-movant.” Sanek v. Duracote Corp., 539

N.E.2d 1114, 1117 (Ohio 1989). “Such a motion will be granted only if, after considering the

evidence in this light, there can be but one reasonable conclusion as to the proper verdict.” Ware

v. Veterans Sec. Patrol Co., No. 1:06-CV-555, 2008 WL 1990437, at *1 (S.D. Ohio May 1,

2008).

         3
           It is irrelevant that the district court granted summary judgment while discovery was ongoing. None of the
purchase agreements discovered or discoverable provides Lawyers enforceable contract rights.
         4
           We have held that it is “clearly within the court’s power” to render judgment sua sponte on the issue of
punitive damages. Aetna Cas. & Sur. Co. v. Leahey Const. Co., 219 F.3d 519, 546 (6th Cir. 2000) (internal
quotation marks omitted).

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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


       Ohio predicates punitive damages on “actions or omissions” that “demonstrate malice.”

Ohio Rev. Code § 2315.21(C)(1). The plaintiff has the burden of proving “malice” “by clear and

convincing evidence.” Id. § 2315.21(D)(4). “Malice” means either “(1) that state of mind under

which a person’s conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a

conscious disregard for the rights and safety of other persons that has a great probability of

causing substantial harm.” UZ Engineered Prods. Co. v. Midwest Motor Supply Co., 770 N.E.2d

1068, 1084 (Ohio Ct. App. 2001) (internal quotation marks omitted).

       Relaying an offer of employment that proximately causes no damages is not a malicious

act. And although the warehousing of transactions demonstrates disloyalty, not every instance of

economic competition is marked by actual malice. Bittinger may have disregarded Lawyers’s

rights vis-à-vis the warehoused purchase agreements, but this did not have “a great probability of

causing substantial harm.” See Preston v. Murty, 512 N.E.2d 1174, 1176 (Ohio 1987) (“[B]efore

submitting the issue of punitive damages to the jury, a trial court must review the evidence to

determine if reasonable minds can differ as to whether the party was aware his or her act had a

great probability of causing substantial harm.”); Blust v. Lamar Adver. Co., 813 N.E.2d 902, 913

(Ohio Ct. App. 2004) (“The crucial issue on appeal is whether Kramer knew that this loss of the

trees had a great probability of resulting in substantial harm to the Blusts, or more specifically,

whether reasonable minds could differ on this issue.”).          These transactions were worth

approximately $3,263.00 to Lawyers, a pittance even to the Medina office of one of the largest

title insurance and escrow services firms in the country. Because the employee contracts here

are at-will and by Lawyers’s own admission Bittinger was a revenue-attached employee whose

customers expressed a desire to continue working with her personally, the customers likely

would have followed Bittinger to Kingdom anyway. Bittinger did delete emails and her personal



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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


e-desk contacts. But some of this conduct was arguably authorized by Lawyers’s own policy

manual, and in any event resulted in minimal—if any—damages. Lawyers has not demonstrated

by clear and convincing evidence that Bittinger’s conduct demonstrated actual malice, and thus

the district court did not err by refusing to instruct the jury on punitive damages.

                                                 D.

       Following the adverse jury verdict, Bittinger renewed her motion for judgment as a

matter of law, arguing that a jury verdict in excess of the value of the transactions she transferred

to Kingdom ($3,263.00) is without evidentiary support. The jury awarded Lawyers $13,028.00

for Bittinger’s breach of her duties during her period of dual employment and for Bittinger’s

tortious interference with business relations. The district court did not err by denying Bittinger’s

motion because there was sufficient evidence to sustain the jury’s award.

       Bittinger concedes that “Lawyers Title’s loss of business could have resulted from

several things, among them, Bittinger’s alleged wrongful acts during the time period, or

Bittinger’s labor and diligence following her employment with Lawyers when she was entitled to

freely compete.” Bittinger admits that reasonable minds could disagree on whether her conduct

caused a decline in revenue, and thus the jury chose one plausible explanation for some of this

decline.   Some evidence exists that while she was still employed with Lawyers, Bittinger

informed several of Lawyers’s repeat customers that she was going to work for Kingdom.

According to Lawyers, Kingdom’s Open/Closed Order Report indicates “that there were

approximately twenty transactions generated by Lawyers Title customers that opened at

Kingdom between June 14 and June 28, 2012.” Three of the customers whom Bittinger told she

was leaving opened orders with Kingdom between June 8 and June 14, 2012—the timeframe for

which the jury was permitted to assess damages. The jury also could have concluded that



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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


Bittinger spoke with additional customers within that period, as the jury had evidence before it

that other customers of Lawyers opened first-time orders with Kingdom during Bittinger’s dual

employment.       Thus, evidence of other damages beyond the lost profits on the purchase

agreements existed, and the jury was free to rely on that evidence in calculating damages.

Bittinger has not “overcome the substantial deference owed a jury verdict.” Radvansky v. City of

Olmsted Falls, 496 F.3d 609, 614 (6th Cir. 2007).

                                                  III.

          At trial, the district court prevented Mark Leszczynski, Lawyers’s Indiana and Ohio

manager, from testifying as to Lawyers’s lost profits for September through December 2012.

Leszczynski was permitted to testify that Lawyers’s lost profits for June through August 2012

were $34,877.00. Lawyers argues that “the district court erred in finding that the Excluded

Causation Theory was not legally cognizable,” and thus the conclusions of law underpinning the

district court’s evidentiary ruling render the evidentiary exclusion an abuse of discretion. Pl.’s

Br. 71.

          “We review the district court’s admission or exclusion of evidence for an abuse of

discretion.” United States v. Perry, 438 F.3d 642, 647 (6th Cir. 2006). But,

          [a]t the same time, [i]n reviewing a trial court’s evidentiary determinations, this
          court reviews de novo the court’s conclusions of law and reviews for clear error
          the court’s factual determinations that underpin its legal conclusions. These
          standards are not in fact inconsistent, because it is an abuse of discretion to make
          errors of law or clear errors of factual determination.

United States v. Ganier, 468 F.3d 920, 925 (6th Cir. 2006) (internal quotation marks and

citations omitted).

          Lawyers’s three-sentence argument on this claim is predicated on the success of its

“excluded causation theory.” Because we have already rejected this theory of proximate cause



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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


and damages, however, we find no error in the legal conclusions underpinning the district court’s

evidentiary ruling. Lawyers provides no other reason why the district court’s evidentiary ruling

was an abuse of discretion.

                                              IV.

       The district court granted summary judgment to co-defendant Kingdom on Lawyers’s

claims for civil conspiracy, tortious interference with business relations, tortious interference

with contract, and unjust enrichment. We affirm on all claims.

                                               A.

       The district court did not err by granting summary judgment to Kingdom on Lawyers’s

claim for civil conspiracy. Ohio law defines civil conspiracy as “a malicious combination of two

or more persons to injure another in person or property, in a way not competent for one alone,

resulting in actual damages.” Kenty v. Transamerica Premium Ins. Co., 650 N.E.2d 863, 866

(Ohio 1995) (citations omitted). The “combination” can be tacit provided the parties have “a

common understanding or design.” Gosden v. Louis, 687 N.E.2d 481, 496 (Ohio Ct. App. 1996).

The “combination” must be “malicious,” meaning “that state of mind under which a person does

a wrongful act purposely, without a reasonable or lawful excuse, to the injury of another.” Id.

To state a claim for civil conspiracy, Lawyers must also prove actual damages: “The element of

‘resulting in actual damages’ means that, if a plaintiff suffers no actual damages from the

underlying unlawful act, there can be no successful civil conspiracy action.”            Gosden,

687 N.E.2d at 497. The damages must “proximately result” from “acts committed pursuant to a

formed conspiracy.” Minarik v. Nagy, 193 N.E.2d 280, 281 (Ohio Ct. App. 1963) (quoting

10 Ohio Jur. 2d § 3, “Conspiracy”).




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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


       Even if Kingdom and Bittinger poached Frattaroli pursuant to a common design, Lawyers

cannot show proximately resultant damages. We have already rejected its attempt to do so

through its “excluded causation theory.” The jury did find that Bittinger breached her duties and

tortiously interfered with Lawyers’s business relations during her dual employment, but Lawyers

has presented no evidence that these actions were “directly attributable” to the conspiracy. See

Minarik, 193 N.E.2d at 281. And these torts were not a foreseeable result of soliciting Frattaroli.

See Hoffman v. Johnston, 36 N.E.2d 184, 189 (Ohio Ct. App. 1941) (“The gist of the action is

the damage and not the conspiracy, and the damage must appear to have been the natural and

proximate consequence of the defendant’s act.”). Summary judgment is appropriate.

                                                B.

       The district court did not err by granting summary judgment to Kingdom on Lawyers’s

claim for tortious interference with business relations. The district court realized that “Lawyers’s

claims for much of the following, including its tortious interference with business relations claim

against Kingdom, hangs [sic] on a finding of civil conspiracy.” Kingdom is not liable as a co-

conspirator for the reasons outlined in Section IV.A, supra. Even if Kingdom knew that the

purchase agreements had been transferred by Bittinger improperly (for which there is no

evidence), this knowledge does not show that Kingdom acted maliciously.               See Gosden,

687 N.E.2d at 496. Malice requires more than “knowledge,” and “[w]hile a jury might be able to

infer from Bittinger’s actions that she intended to commit wrongful acts by diverting orders from

her current employer, the evidence does not show that either Kingdom or Frattaroli intentionally

committed any wrongful act.” Lawyers has not argued that Kingdom itself tortiously interfered

with Lawyers’s business relations, and because Lawyers had no enforceable contracts rights with

regard to the transferred purchase agreements, Kingdom is not directly liable.



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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


                                                C.

       The district court did not err by granting summary judgment to Kingdom on Lawyers’s

claim for tortious interference with contract. If Lawyers had no enforceable contract rights

arising from the purchase agreements—and we have held that it did not—then Kingdom cannot

be liable to Lawyers as a co-conspirator for tortiously interfering with those rights. See Gosden,

687 N.E.2d at 497 (“The element of ‘resulting in actual damages’ means that, if a plaintiff

suffers no actual damages from the underlying unlawful act, there can be no successful civil

conspiracy action.”).

                                                D.

       The district court did not err by granting summary judgment to Kingdom on Lawyers’s

claim for unjust enrichment.     It held that Lawyers’s “excluded causation theory” is “too

attenuated to withstand summary judgment.” “Unjust enrichment of a person occurs when he or

she has and retains money or benefits which in justice and equity belong to another.” Univ.

Hosps. of Cleveland, Inc. v. Lynch, 772 N.E.2d 105, 117 (Ohio 2002) (internal quotation marks

omitted).

       Lawyers argued below that Kingdom was unjustly enriched by “Bittinger’s breach of

fiduciary duty and tortious interference with business relations.” Lawyers admits that its claim is

premised exclusively on the “excluded causation theory,” which we have explained is but a

clever attempt to avoid showing proximately caused damages. Lawyers has never made the

perhaps more reasonable claim that Kingdom was unjustly enriched by retaining the profits on

the transactions that Bittinger forwarded to Kingdom during her period of dual employment.

Summary judgment on this claim is thus appropriate as well.




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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


                                              V.

       For the foregoing reasons, we AFFIRM the district court’s orders granting partial

summary judgment and judgment as a matter of law to Bittinger, and summary judgment to

Kingdom, and AFFIRM the denial of Bittinger’s renewed motion for judgment as a matter of law

as to the jury’s damages award.




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Nos. 13-3821/3853, Lawyers Title Company, LLC v. Kingdom Title Solutions, Inc., et al.


       HELENE N. WHITE, Circuit Judge (concurring). I do not agree that the district court
properly granted summary judgment dismissing Lawyers Title’s interference-with-contractual-
relations claim regarding the Avon Road and State Route 43 properties.            The testimony
established a genuine issue whether the parties had contracted for Lawyers Title’s services. I
conclude, however, that the error does not warrant reversal because it had no effect on the jury’s
ability to award damages for the conduct underlying the dismissed claim in light of the court’s
instructions on the claims that did go to the jury. The instructions actually given to the jury
allowed for a verdict in favor of Lawyers Title with respect to these contracts to the same extent
an instruction on the dismissed claim would have.




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