[Cite as MT Business Technologies, Inc. v. Greene, 2019-Ohio-4847.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



MT BUSINESS TECHNOLOGIES, INC. :                              JUDGES:
                                      :                       Hon. William B. Hoffman, P.J.
   Plaintiff-Appellee/Cross-Appellant :                       Hon. Patricia A. Delaney, J.
                                      :                       Hon. Earle E. Wise, Jr., J.
-vs-                                  :
                                      :
MICHAEL GREENE, ET AL.                :                       Case No. 18-CA-61
                                      :
   Defendants-Appellants/Cross-       :
   Appellees                          :                       OPINION




CHARACTER OF PROCEEDING:                                      Appeal from the Court of Common
                                                              Pleas, Case No. 17-CV-00978



JUDGMENT:                                                     Affirmed/Reversed in Part and
                                                              Remanded



DATE OF JUDGMENT:                                             November 25, 2019




APPEARANCES:

For Plaintiff-Appellee/                                       For Defendants-Appellants/
Cross-Appellant                                               Cross-Appellees

THOMAS P. DILLON                                              DAVID K. MONTGOMERY
NICHOLAS T. STACK                                             KAREN DUNLEVEY
North Courthouse Square                                       PNC Center, 26th Floor
1000 Jackson Street                                           201 East Fifth Street
Toledo, OH 43604-5573                                         Cincinnati, OH 45202
Licking County, Case No. 18-CA-61                                                    2


Wise, Earle, J.

       {¶ 1} Defendants-Appellants, Michael Greene and Modern Office Methods, Inc.

(hereinafter "MOM"), appeal numerous judgment entries of the Court of Common Pleas

of Licking County, Ohio.    Plaintiff-Appellee, MT Business Technologies, Inc., cross-

appeals the trial court's July 5, 2018 judgment entry on post-trial motions.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} In July 2003, appellant Greene began working for appellee MT selling and

leasing Ricoh copiers and equipment.        He signed an employment agreement that

contained a non-disclosure agreement, but did not contain restrictive covenants, non-

competition, or non-solicitation provisions. Prior to working for MT, Greene owned his

own business selling and leasing Xerox equipment.

       {¶ 3} In May 2017, MT was acquired by Xerox and was no longer an authorized

Ricoh dealer. In July 2017, Greene submitted a notice of retirement to MT and began

employment with MOM who sold and leased Ricoh equipment and was an authorized

Ricoh dealer.

       {¶ 4} On October 23, 2017, MT filed an amended complaint against Greene,

claiming breach of employment agreement, breach of duty, trade secret misappropriation,

unfair competition, and conversion. On January 5, 2018, MT filed a second amended

complaint to add claims against MOM for trade secret misappropriation, unfair

competition, and tortious interference with contract. MT sought injunctive relief and

damages.

       {¶ 5} On February 15, 2018, appellants filed a motion for summary judgment

seeking dismissal of all of MT's claims because MT could not establish the requisite
Licking County, Case No. 18-CA-61                                                         3


elements of each claim. By judgment entry filed March 20, 2018, the trial court agreed

Greene never consented to the restrictive covenants and therefore held that MT could not

pursue its breach of contract claim relating to those provisions. The trial court denied the

motion as to the remaining claims.

       {¶ 6} A jury trial commenced on April 4, 2018. The jury found in favor of MT on

its breach of employment agreement and trade secret misappropriation claims against

Greene, tortious interference with contract claim against MOM, and unfair competition

claims against each appellant. The jury also found each appellant acted with malice

and/or fraud. The jury awarded MT $665,000 in damages: $375,000 for compensatory

damages and $40,000 for punitive damages against Greene, and $225,000 for

compensatory damages and $25,000 for punitive damages against MOM. Pursuant to

interrogatories, the $375,000 compensatory award against Greene consisted of: $25,000

for the breach, $150,000 for trade secret misappropriation, and $200,000 for unfair

competition. The $225,000 compensatory award against MOM consisted of: $25,000 for

tortious interference and $200,000 for unfair competition. A final judgment entry on the

verdicts was filed on April 10, 2018.

       {¶ 7} On April 24, 2018, MT filed a motion for prejudgment interest.

       {¶ 8} On May 4, 2018, appellants filed a motion for judgment notwithstanding the

verdict (hereinafter "JNOV"), or in the alternative for a new trial.

       {¶ 9} On May 15, 2018, MT filed a motion for exemplary damages against Greene

for his willful and malicious misappropriation, a motion to tax costs, and a motion for

attorney fees.
Licking County, Case No. 18-CA-61                                                             4


          {¶ 10} By judgment entry filed July 5, 2018, the trial court denied appellants' motion

for JNOV or in the alternative for a new trial, denied MT's motions for prejudgment interest

and exemplary damages, granted MT's request for injunctive relief for a period of five

years, partially granted MT's motion for costs, and partially granted MT's motion for

attorney fees. By judgment entry filed July 27, 2018, the trial court entered its order on

injunctive relief.

          {¶ 11} On August 6, 2018, appellants filed an appeal and assigned the following

errors:

                                                 I

          {¶ 12} "THE TRIAL COURT ERRED IN DENYING APPELLANTS' MOTION FOR

JUDGMENT NOTWITHSTANDING THE VERDICT."

                                                II

          {¶ 13} "THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANTS' MOTION FOR A NEW TRIAL."

                                                III

          {¶ 14} "THE TRIAL COURT ERRED IN DENYING APPELLANTS' MOTION FOR

SUMMARY JUDGMENT."

                                                IV

          {¶ 15} "THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING

APPELLANTS' OBJECTIONS TO THE ADMISSION OF EVIDENCE RELATING TO

APPELLANT GREENE'S PREVIOUS LAWSUIT."
Licking County, Case No. 18-CA-61                                                    5


                                            V

          {¶ 16} "THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING

APPELLEE'S MOTION FOR ATTORNEYS' FEES."

                                            VI

          {¶ 17} "THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING

APPELLEE'S MOTION FOR INJUNCTIVE RELIEF."

          {¶ 18} On August 16, 2018, MT filed a cross-appeal and assigned the following

errors:

                           CROSS-ASSIGNMENT OF ERROR I

          {¶ 19} "THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING CROSS-

APPELLANT'S MOTION FOR EXEMPLARY DAMAGES PURSUANT TO R.C. §

1333.63(B)."

                           CROSS-ASSIGNMENT OF ERROR II

          {¶ 20} "THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING CROSS-

APPELLANT'S MOTION FOR PRE-JUDGMENT INTEREST PURSUANT TO R.C. §

1343.03(C)."

                          CROSS-ASSIGNMENT OF ERROR III

          {¶ 21} "THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING, IN PART,

CROSS-APPELLANT'S MOTION FOR ATTORNEYS' FEES PURSUANT TO THE

JURY'S PUNITIVE DAMAGE AWARD AND R.C. § 1333.64(C)."
Licking County, Case No. 18-CA-61                                                       6


                        CROSS-ASSIGNMENT OF ERROR IV

      {¶ 22} "THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING, IN PART,

CROSS-APPELLANT'S MOTION FOR COSTS PURSUANT TO CIVIL RULE 54(D), R.C.

§ 2303.21, AND THE JURY'S PUNITIVE DAMAGE AWARD."

      {¶ 23} This matter is now before this court for consideration.

                                            I

      {¶ 24} In their first assignment of error, appellants claim the trial court erred in

denying their motion for JNOV. We agree in part.

      {¶ 25} Civ.R. 50(B) governs motions for JNOV and states the following in part:

"Whether or not a motion to direct a verdict has been made or overruled, a party may

serve a motion to have the verdict and any judgment entered thereon set aside and to

have judgment entered in accordance with the party's motion."

      {¶ 26} In Pariseau v. Wedge Products, Inc., 36 Ohio St.3d 124, 127, 522 N.E.2d

511 (1988), the Supreme Court of Ohio discussed the standard of review on a motion for

JNOV as follows:



             While we are aware that the grounds for granting a judgment n.o.v.

      are not easily met, a motion for such a judgment must be sustained when

      circumstances so require.

             "The test to be applied by a trial court in ruling on a motion for

      judgment notwithstanding the verdict is the same test to be applied on a

      motion for a directed verdict. The evidence adduced at trial and the facts

      established by admissions in the pleadings and in the record must be
Licking County, Case No. 18-CA-61                                                     7


      construed most strongly in favor of the party against whom the motion is

      made, and, where there is substantial evidence to support his side of the

      case, upon which reasonable minds may reach different conclusions, the

      motion must be denied.      Neither the weight of the evidence nor the

      credibility of the witnesses is for the court's determination in ruling upon

      either of the above motions." Posin v. A.B.C. Motor Court Hotel (1976), 46

      Ohio St.2d 271, 275, 74 O.O.2d 427, 430, 344 N.E.2d 334, 338. (Additional

      citations omitted.)



      {¶ 27} Appellate review of a ruling on a motion for JNOV is de novo. Midwest

Energy Consultants, L.L.C. v. Utility Pipeline, Ltd., 5th Dist. Stark No. 2006CA00048,

2006-Ohio-6232.

                            UNFAIR COMPETITION CLAIM

      {¶ 28} In their motion for JNOV, appellants challenged the jury's verdict on MT's

unfair competition claim. The jury found appellants "by false representations engaged in

unfair competition against Plaintiff" and awarded MT $200,000 as against Greene and

$200,000 as against MOM for lost profits. Interrogatory Nos. 5 and 8. Appellants argued

MT based its unfair competition claim solely on one email sent by Greene to one of its

customers, and no proof was presented that this customer was misled by the email or

that MT lost any business because of Greene's statements.

      {¶ 29} On cross-examination, Greene admitted to sending out the following email

dated September 21, 2017, to one of MT's customers, Scott & Nolder Co., LPA: "This is

Mike Greene, your Ricoh copy machine rep. I have made the transition to the Authorized
Licking County, Case No. 18-CA-61                                                            8


Ricoh dealer…Modern Office Methods.           Ricoh has several promotions available for

current customers. Can I make an appointment to discuss them with you and Attorney

Scott?" T. at 324; Plaintiff's Exhibit 30. On direct examination, Greene acknowledged

that he informed MT's customers that he was now with the authorized Ricoh dealer and

MT was no longer the authorized dealer. T. at 640.

        {¶ 30} Charles Rounds, MT's president, explained because MT was purchased by

Xerox, it was no longer a Ricoh authorized service provider for marketing purposes, but

they continued to sell new and used Ricoh equipment and provide service and supplies.

T. at 426-427.

        {¶ 31} The trial court instructed the jury on unfair competition as follows (T. at 807-

808):



               Unfair competition ordinarily consists of representations by one

        person for the purpose of deceiving the public that his goods or services are

        those of another. The concept of unfair competition extends [to] unfair

        commercial practices such as malicious litigation, circulation of false

        rumors, or publication of statements designed to harm the business of

        another.

               MT claims that Greene, while acting as MOM's agent, falsely

        represented himself to MT customers as the current product representative

        for those customers. MT claims the statement was false[ly] made to the MT

        customers to cause confusion and cause MT damages.
Licking County, Case No. 18-CA-61                                                        9


              If you find by the greater weight of the evidence that MT proved its

       unfair competition claim, you must further decide whether Greene and/or

       MOM's unfair competition caused MT to suffer any damages and, if so, in

       what amount.

              If you find from the greater weight of the evidence that MT failed to

       prove any part of its unfair competition claim, you will then find for Greene

       and/or MOM.



       {¶ 32} Appellants did not object to this instruction.

       {¶ 33} Greene sent out an email informing Scott & Nolder, an MT customer, that

he was their "Ricoh copy machine rep," presumably because he transitioned to MOM, the

authorized Ricoh dealer. In truth, their current Ricoh copy machine rep was whomever

replaced Greene at MT. Greene further informed Scott & Nolder that Ricoh has several

promotions available for current customers; however, Scott & Nolder was a current

customer of MT. In construing the evidence presented most strongly in favor of the non-

moving party, we find reasonable minds could have reached different conclusions as to

whether Greene falsely represented himself to MT customers as the current product

representative for those customers in order to cause confusion and cause MT damages.

       {¶ 34} Appellants further argue there was no evidence that MT suffered damages

related to Greene's statements. The trial court instructed the jury on unfair competition -

damages as follows (T. at 809; Jury Instructions filed April 9, 2018):
Licking County, Case No. 18-CA-61                                                              10


             GENERAL. If you find by the greater weight of the evidence that

      Greene and/or MOM engaged in unfair competition, MT is entitled to

      recover damages.

             DAMAGES – LOST PROFITS. Actual loss may include lost profits.

      Lost profits are calculated by deciding what MT would have received had

      Greene and/or MOM refrained from unfairly competing with MT. You may

      only award damages the existence and amount of which are reasonably

      certain and have been proved to you by the greater weight of the evidence.

      You may not award damages that are remote or speculative.



      {¶ 35} The jury awarded MT $375,000 for compensatory damages against Greene

and $225,000 for compensatory damages against MOM. Out of those amounts, a total

of $400,000 was attributable to the unfair competition claim ($200,000 each).

Interrogatory Nos. 5 and 8.

      {¶ 36} Appellants argue evidence was not presented that Scott & Nolder moved

its business to MOM or that Green's statements caused any other customers to move to

MOM, and there was no evidence that the amount of damages was reasonably certain.

      {¶ 37} "[I]n order for a plaintiff to recover lost profits, 'the amount of the lost profits,

as well as their existence, must be demonstrated with reasonable certainty.' " Ask

Chemicals, Inc. v. Computer Packages, Inc., 593 Fed.Appx. 506, 511 (6th Cir.2014),

quoting City of Gahanna v. Eastgate Properties, Inc., 36 Ohio St.3d 65, 68, 521 N.E.2d

814 (1988). "A plaintiff may not merely assert that it would have made a particular amount

of profits, but must prove lost profits with calculations based on facts." UZ Engineered
Licking County, Case No. 18-CA-61                                                        11


Products Co. v. Midwest Motor Supply Co., Inc., 147 Ohio App.3d 382, 2001-Ohio-8779,

¶55, 770 N.E.2d 1068 (10th Dist.). " 'Unless the figure is supported by calculations based

on facts available or in evidence, the courts will properly reject it as speculative or

uncertain.' " Ask at 511, quoting Endersby v. Schneppe, 73 Ohio App.3d 212, 596 N.E.2d

1081, 1084 (1991). "The law in this state requires that evidence of lost profits be based

upon an analysis of lost 'net' profit after the deduction of all expenses impacting on the

profitability of the business in question." Digital & Analog Design Corp. v. North Supply

Co., 44 Ohio St.3d 36, 48, 540 N.E.2d 1358 (1989) (Wright, J., concurring in part and

dissenting in part).

       {¶ 38} This court reiterates that in reviewing a decision on JNOV, we must

determine whether there is " 'sufficient material evidence presented at trial on this issue

to create a factual question for the jury.' " Torres v. Concrete Designs, Inc., 8th Dist.

Cuyahoga Nos. 105833 and 106493, 2019-Ohio-1342, ¶ 78, quoting Malone v. Courtyard

by Marriott Ltd. Partnership, 74 Ohio St.3d 440, 445, 659 N.E.2d 1242 (1996).

       {¶ 39} Mr. Rounds testified to lost revenue of over two million dollars. T. at 452,

455, 511.    He explained whenever MT received a cancellation request, he and an

employee reviewed the individual contracts for average selling price, the actual hardware

purchased, and the term of the service agreement, and calculated the lost revenue from

each lost customer. T. at 457-458. Mr. Rounds then testified to lost profits of $940,000.

T. at 458, 482, 511. He calculated the lost profits amount on the same records used in

determining the lost revenue amount. T. at 458, 482. Mr. Rounds stated it was "not exact

science. We just had - - go one contract by another, went through every one and came

to a conclusion that this would be the amount of the gross profit or profit of the deal." T.
Licking County, Case No. 18-CA-61                                                             12


at 458. He did not deduct overhead expenses because each contract contained a markup

to cover overhead costs. T. at 488. There was no explanation as to what the "markup"

entailed. Mr. Rounds was the person responsible at MT to "maintain revenue and

profitability numbers." T. at 481. He determined the $940,000 lost profits amount "using

the same type of methodology and regular analysis" that he used to review the profitability

of MT's business and other contracts. T. at 482. In support, MT presented Plaintiff's

Exhibit 37. Said exhibit is a list of MT's lost customers that apparently included amounts

for lost revenue, not lost profits, however, the trial court admitted the exhibit after redacting

any listed amounts, finding the two million dollar number included in the exhibit to be

prejudicial. T. at 461-463, 533. The exhibit as redacted is merely a list of customer names

that switched from MT to MOM.

       {¶ 40} MT also presented Plaintiff's Exhibits 18 (larger print) and 19 (smaller print),

a spreadsheet containing "data regarding your [Greene's] historical sales" for the time

period that Greene was employed with MT. T. at 277. The exhibit, prepared by MT on

July 3, 2017, contained detailed information on Greene's customer accounts, including

gross profits made from each customer. T. at 278-281, 299-300. On cross-examination,

Mr. Rounds was asked if the gross profit number minus the sales commission figure

equaled MT's net profit. T. at 488-491. Mr. Rounds explained the resulting number would

not reflect the actual profit because "I also just told you there's a markup. These are the

sales rep transfers." T. at 490. The markup numbers are not included in the exhibit. Id.

On redirect, he reiterated, "those numbers off the spreadsheet are based off of sales rep

costs. There is a markup from true cost to cover the expenses of the company, and so

that obviously the company is profitable." T. at 509. MT did not present any exhibits
Licking County, Case No. 18-CA-61                                                       13


containing numbers related to lost profits, nor did the employee that helped "crunch the

numbers" testify.

      {¶ 41} During closing argument, MT's counsel discussed damages as follows:

"And we heard from Chuck Rounds. Yeah, there was $2 million plus of revenue and he

said that equated to $940,000 in lost profits. To be made whole MT needs $940,000 to

make up that difference in the business that Mike Greene diverted." T. at 755. On

rebuttal, MT's counsel argued that Mr. Rounds explained one could not figure out lost

profits from Plaintiffs Exhibits 18 and 19 "[s]o, I don't think you should try and do that

because it's incorrect, it's misleading, and Mr. Rounds explained to you why." T. at 780.

      {¶ 42} In its appellate brief at 8, MT argues it claimed lost profits on canceled

customer contracts, and those contracts and related invoices were admitted into

evidence. Those contracts and invoices were introduced by Greene as Defendant's

Exhibit C. Greene explained the contracts and invoices therein were freely given to him

by MT customers. T. at 649-650. From these documents, he formulated his proposals

on behalf of MOM. T. at 650. The exhibit contained a couple more than half of the

contracts/leases of the lost customers listed in Plaintiff's Exhibit 37. Mr. Rounds was not

asked about Defendant's Exhibit C, and did not testify on the amounts listed therein. At

no time did Mr. Rounds review a contract or lease or invoice and explain what number(s)

he used in his calculations to determine lost profits. There was no testimony as to whether

the contracts/leases and invoices were current and if the contracts/leases were at the

beginning or end of their terms.

      {¶ 43} The only evidence in the record regarding lost profits is the testimony of Mr.

Rounds. This testimony is not supported by other facts or documents in the record. Mr.
Licking County, Case No. 18-CA-61                                                            14


Rounds admitted calculating the gross lost profits amount was not an exact science. Even

assuming the credibility of Mr. Rounds's testimony, there is insufficient proof of lost profits.

His testimony fails to set forth how he arrived at the final amount of $940,000. Without

more in the record, any award for lost profits is speculative and uncertain.

                                    ALL OTHER CLAIMS

       {¶ 44} Also in their motion for JNOV, appellants challenged the jury's verdict on all

of appellee's claims because appellee's evidence of lost profits was insufficient.

Appellants argued appellee failed to establish lost profit damages with reasonable

certainty as the only evidence presented was from the company president, Charles

Rounds.

       {¶ 45} As discussed above, we agree the evidence was insufficient to prove lost

profits. All of the claims, including the claim for unfair competition, sought damages based

on lost profits except for one, trade secret misappropriation. Said claim sought damages

based on lost profits and unjust enrichment. The trial court instructed the jury on unjust

enrichment as follows: " 'Unjust enrichment' means the value to Greene and/or MOM of

the trade secret resulting from the misappropriation. In determining this value, you may

consider the value of customer relationships or contracts realized by Greene and/or MOM

as a result of any misappropriation."

       {¶ 46} Appellants did not object to this charge, did not raise the issue in their

motion for JNOV, and did not claim any error on appeal. Appellants did not specifically

challenge the trade secret misappropriation claim and the resulting damages award. The

jury could have awarded damages on said claim under the theory of unjust enrichment.
Licking County, Case No. 18-CA-61                                                        15


       {¶ 47} Appellants further argue because appellee did not sufficiently establish

compensatory damages, the trial court erred in not granting the motion for JNOV on the

issue of punitive damages. As compensatory damages were awarded on the trade secret

misappropriation claim in the amount of $150,000 against Greene and the jury found the

misappropriation was willful and malicious (Interrogatory No. 3), we find punitive damages

could be awarded (R.C. 2315.21). Appellants did not challenge the punitive damages

award in any other fashion.

       {¶ 48} Upon review, we find the trial court erred in not granting the motion for JNOV

on the damages awarded against Greene for breach of contract ($25,000) and unfair

competition ($200,000), and against MOM for tortious interference ($25,000) and unfair

competition ($200,000). In light of the fact that the JNOV motion should have been

granted on the total amount of compensatory damages assessed against MOM, the

motion should have also been granted on the punitive damages award ($25,000) against

MOM.

       {¶ 49} Assignment of Error I is granted in part and denied in part.

                                             II

       {¶ 50} In their second assignment of error, appellants claim the trial court erred in

denying their motion for new trial. Given our decision in Assignment of Error I, we find

this assignment to be moot save for the claim of trade secret misappropriation.

       {¶ 51} Civ.R. 59 governs motions for new trial and states the following in part as

argued by appellants:
Licking County, Case No. 18-CA-61                                                      16


            (A) Grounds for New Trial. A new trial may be granted to all or any

      of the parties and on all or part of the issues upon any of the following

      grounds:

            (4) Excessive or inadequate damages, appearing to have been given

      under the influence of passion or prejudice;

            (6) The judgment is not sustained by the weight of the evidence;

      however, only one new trial may be granted on the weight of the evidence

      in the same case;

            (7) The judgment is contrary to law;

            In addition to the above grounds, a new trial may also be granted in

      the sound discretion of the court for good cause shown.



      {¶ 52} As explained by this court in McFarland v. Gillespie, 5th Dist. Fairfield No.

18-CA-17, 2019-Ohio-1050, ¶ 60:



            When considering a motion for a new trial pursuant to Civil Rule

      59(A)(6), a court must weigh the evidence and pass on the credibility of the

      witnesses. A new trial will not be granted where the verdict is supported by

      competent, substantial, and apparently credible evidence. Harris v. Mt.

      Sinai Med. Ctr., 116 Ohio St.3d 139, 2007-Ohio-5587, 876 N.E.2d 1201.

      Because a trial court is in the best position to decide issues of fact, it is

      vested with broad discretion in ruling upon motions for new trial based upon

      Civil Rule 59(A)(6). Id. Our standard of review on a motion for new trial is
Licking County, Case No. 18-CA-61                                                     17


       abuse of discretion. Civil Rule 59. 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, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).


       {¶ 53} In his May 4, 2018 motion arguing for a new trial on the trade secret

misappropriation claim, Greene argued the jury's verdict was "against the manifest weight

of the evidence and contrary to law because MT did not present any evidence to

sufficiently establish its damages relating to such claims to a reasonable certainty."

Because we have determined insufficient evidence as to lost profits, we will review this

argument in relation to unjust enrichment.

       {¶ 54} The Ohio Uniform Trade Secret Act, R.C. 1333.61(D), defines a "trade

secret" as follows:



              "Trade secret" means information, including the whole or any portion

       or phase of any scientific or technical information, design, process,

       procedure, formula, pattern, compilation, program, device, method,

       technique, or improvement, or any business information or plans, financial

       information, or listing of names, addresses, or telephone numbers, that

       satisfies both of the following:

              (1) It derives independent economic value, actual or potential, from

       not being generally known to, and not being readily ascertainable by proper

       means by, other persons who can obtain economic value from its disclosure

       or use.
Licking County, Case No. 18-CA-61                                                     18


             (2) It is the subject of efforts that are reasonable under the

      circumstances to maintain its secrecy.



      {¶ 55} R.C. 1333.61(B) defines "misappropriation" as any of the following:



             (1) Acquisition of a trade secret of another by a person who knows

      or has reason to know that the trade secret was acquired by improper

      means;

             (2) Disclosure or use of a trade secret of another without the express

      or implied consent of the other person by a person who did any of the

      following:

             (a) Used improper means to acquire knowledge of the trade secret;

             (b) At the time of disclosure or use, knew or had reason to know that

      the knowledge of the trade secret that the person acquired was derived from

      or through a person who had utilized improper means to acquire it, was

      acquired under circumstances giving rise to a duty to maintain its secrecy

      or limit its use, or was derived from or through a person who owed a duty to

      the person seeking relief to maintain its secrecy or limit its use;

             (c) Before a material change of their position, knew or had reason to

      know that it was a trade secret and that knowledge of it had been acquired

      by accident or mistake.
Licking County, Case No. 18-CA-61                                                       19


       {¶ 56} In State ex rel. Plain Dealer v. Ohio Department of Insurance, 80 Ohio St.3d

513, 524-525, 687 N.E.2d 661 (1997), citing Pyromatics, Inc. v. Petruziello, 7 Ohio App.3d

131, 134-135, 454 N.E.2d 588, 592 (8th Dist.1983), the Supreme Court of Ohio set forth

what a trial court must consider when analyzing a trade secret claim:



              (1) The extent to which the information is known outside the

       business; (2) the extent to which it is known to those inside the business,

       i.e., by the employees; (3) the precautions taken by the holder of the trade

       secret to guard the secrecy of the information; (4) the savings effected and

       the value to the holder in having the information as against competitors; (5)

       the amount of effort or money expended in obtaining and developing the

       information; and (6) the amount of time and expense it would take for others

       to acquire and duplicate the information.



       {¶ 57} Greene admitted he was aware that "customer lists, telemarketing

information, pricing, contact expiration, information, et cetera" was considered by MT to

be trade secrets, confidential, and was to be protected at all times. T. at 229-230. Greene

agreed MT owned the information regarding the sales he had made. T. at 245. He agreed

he shared comparative pricing information, service rates, and color base pricing with

MOM. T. at 252-255. He also shared three customer names outside of Licking County

with MOM and discussed trying to convert them from MT to MOM. T. at 255-256. Prior

to leaving MT, Greene backed-up all of his contacts on his phone in anticipation of leaving

MT. T. at 268-269. His contacts included MT's customer names and phone numbers. T.
Licking County, Case No. 18-CA-61                                                       20


at 270-271. He then emailed the list from his work email address to his personal email

address. T. at 270-272; Plaintiff's Exhibits 12-15. He was aware that once he left MT's

employ, MT would have remotely wiped his contact list from his phone. T. at 269. He did

not have permission from MT to back-up the contact information. T. at 269. He also

emailed to his personal email address an analysis prepared by MT of his historical sales

figures. T. at 277; Plaintiff's Exhibit 18. The historical sales figures contained detailed

information on Greene's customer accounts. T. at 280-281. Greene agreed the exhibit

contained confidential information, and he did not ask for permission to send the

information to his personal email address. T. at 282. He did not have any reason to

believe that MOM had any of the information contained in the exhibit at the time that he

left MT's employ. T. at 283. Greene admitted that he emailed himself the information to

provide proof of his sales to MOM. T. at 286. Prior to leaving MT, Greene emailed to his

personal email address three proposals he had prepared on behalf of MT for customers

that he contacted after he moved to MOM. T. at 304-314; Plaintiff's Exhibits 21, 22, 23,

24, 25. Greene admitted that he retained confidential information from MT despite

representing in his employment agreement with MOM that he had not. T. at 319. He

acknowledged that he wanted to maximize the number of customers that he could move

from MT to MOM. T. at 320. He admitted he was working on those efforts to move

customers before he was an official employee of MOM. T. at 320-321. Mr. Rounds

testified MT's employment agreements and employee handbook expressly discussed the

handling of confidential information. T. at 435-440; Plaintiff's Exhibits 1, 2, 29. MT

specifically trained its employees that company information was confidential and was not

to end up in "anyone's hands outside the company." T. at 436. MT went to great lengths
Licking County, Case No. 18-CA-61                                                         21


to make sure everything was secure and the computers had sign-in IDs. Id. He stated

the information contained in Plaintiff's Exhibit 18 contained confidential information that

would absolutely give a competitor an advantage in the marketplace. T. at 433-435.

       {¶ 58} We find the record contains sufficient evidence, if believed by the jury, to

support a finding of trade secret misappropriation and that the misappropriation was willful

and malicious. Interrogatory No. 3.

       {¶ 59} As instructed by the trial court, cited above in ¶ 45, unjust enrichment is the

value to Greene of the trade secret resulting from the misappropriation. The jury could

consider the value of customer relationships or contracts realized by Greene as a result

of the misappropriation. The jury had before it Defendant's Exhibit C which contained

various contracts and invoices of Greene's customers while he was employed with MT,

Plaintiff's Exhibit 37 which was the list of customers that moved from MT to MOM, and

Plaintiff's Exhibits 18 which was the spreadsheet containing data regarding Greene's

historical sales during his employ with MT. We find the record contains sufficient evidence

to support the jury's determination on the value to Greene of the trade secrets he

misappropriated. There was ample evidence to support an award under the theory of

unjust enrichment.

       {¶ 60} Upon review, we find the trial court did not abuse its discretion in denying

the motion for new trial on the trade secret misappropriation claim. The compensatory

damages awarded against Greene for said claim ($150,000) and the punitive damages

award ($40,000) stand.

       {¶ 61} Assignment of Error II is denied.
Licking County, Case No. 18-CA-61                                                         22


                                            III

      {¶ 62} In their third assignment of error, appellants claim the trial court erred in

denying their motion for summary judgment on appellee's claims for breach of contract,

unfair competition, and tortious interference with a contract. Based upon our decision in

Assignment of Error I, we find this assignment to be moot.

                                            IV

      {¶ 63} In their fourth assignment of error, appellants claim the trial court abused its

discretion in permitting evidence of a prior lawsuit filed against Greene by Xerox

Corporation after he stopped working as an independent agent for Xerox. We disagree.

      {¶ 64} The admission or exclusion of relevant evidence lies in a trial court's sound

discretion. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528; State

v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). As previously stated, in order to find

an abuse of that 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, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

      {¶ 65} Prior to working for MT, Greene was an independent agent selling copiers

made by Xerox. After Greene terminated that business relationship and started working

for MT, Xerox filed a lawsuit against Greene and MT, alleging various claims including

breach of contract, misappropriation of trade secrets, and taking "tally sheets" which is

the list of sales made by Greene. T. at 334, 337. In the case sub judice, MT was permitted

to cross-exam Greene, over objection, about this prior lawsuit, and admit into evidence

Plaintiff's Exhibit 36, a "Final Judgment of Permanent Injunction and Other Relief" entered

in the Xerox case as part of the parties' settlement agreement.          In the settlement
Licking County, Case No. 18-CA-61                                                          23


agreement, Greene was "enjoined from competing for new business for any person,

business or entity that currently has one or more items of Xerox brand equipment located

in Licking County, Ohio for a period of one year." T. at 338. Greene agreed he was so

enjoined. T. at 339. Said exhibit indicated that Greene and MT were "jointly and severally

liable to Xerox for $150,000." T. at 339. The trial court cautioned the jury on the

significance of a settlement agreement, both before and after the evidence was

presented. T. at 329-330, 339-340.

       {¶ 66} Appellants argue the evidence was inadmissible under Evid.R. 403 and

404. Evid.R. 403(A) states relevant "evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or

of misleading the jury." Evid.R. 404(A) states, "[e]vidence of a person's character or a

trait of character is not admissible for the purpose of proving action in conformity therewith

on a particular occasion," and Evid.R. 404(B) states, "[e]vidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order to show action in

conformity therewith." Evid.R. 404(B) goes on to state: "It may, however, be admissible

for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident." Appellants argue the evidence

was highly prejudicial, and was offered to show action in conformity therewith i.e., "pattern

and practice."

       {¶ 67} In permitting the complained of evidence, the trial court ruled as follows (T.

at 287 and 289-290, respectively):
Licking County, Case No. 18-CA-61                                                       24


              I would note that based on some of the testimony of Defendant

       Greene with regards to whether or not something is confidential information

       or whether he believed paragraph two, addendum three was applicable, I'm

       going to find there's a stronger nexus with absence of mistake and

       knowledge. So, if you move to admit it, the odds are that's what I'm doing.

              ***

              When Mr. Greene was indicating certain things about confidential

       information saying I didn't believe that was confidential, I didn't believe, I

       think there's reference in the judgment entry about confidential information

       and there's enough there that I find that the nexus that the Plaintiff was

       arguing about is less tenuous, and my concerns about any prejudice

       overweighing the probative value is not outweighed by the prejudice. Okay.

       And I will give that curative instruction.



       {¶ 68} We concur with the trial court's reasoning. Greene was cross-examined as

to the confidential nature of certain company documents, to which Greene testified he did

not believe the documents to be confidential. T. at 242-245, 252-255, 269, 279-283, 285-

286. In wanting to present the evidence of the prior Xerox lawsuit, MT did more than

argue "pattern and practice" as argued by appellants in their appellate brief at 25. MT

also argued motive, intent, preparation, absence of mistake or accident, and knowledge.

T. at 23-24. MT wanted to challenge Greene's reasons for emailing himself certain

company information by arguing his actions were planned, were not a mistake, and he

knew what he was doing. In addition, the trial court twice issued a limiting instruction on

the jury's use of the evidence.
Licking County, Case No. 18-CA-61                                                         25


       {¶ 69} Upon review, we find the trial court did not abuse its discretion in permitting

evidence of the prior lawsuit.

       {¶ 70} Assignment of Error IV is denied.

                                             V

       {¶ 71} In their fifth assignment of error, appellants claim the trial court abused its

discretion in granting appellee attorney fees. Given our decision in Assignment of Error

I, we agree in part.

       {¶ 72} We review a trial court's decision regarding an award of attorney fees for

abuse of discretion. Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 569 N.E.2d

464 (1991); Blakemore, supra.

       {¶ 73} In its July 5, 2018 judgment entry, the trial court assessed attorney fees

against both Greene and MOM, mitigating the award "by the degree of success, or lack

therefore, of the Plaintiff on his claims." The trial court found appellee was responsible

for 42% of the attorney fees found to be reasonable in the case and appellants were

responsible for the remaining 58%.

       {¶ 74} Appellants first argue the trial court abused its discretion in awarding

attorney fees under R.C. 1333.64(C) because MT was not entitled to punitive damages.

We disagree as we have found punitive damages against Greene to be appropriate.

       {¶ 75} Appellants next argue the trial court abused its discretion in awarding

attorney fees with respect to MOM under R.C. 1333.64(C) because the jury found MOM

did not misappropriate trade secrets. A review of the trial court's decision indicates the

trial court awarded attorney fees against MOM based on the jury's finding that MOM

"acted with malice; acted with aggravated or egregious fraud; or knowingly authorized,
Licking County, Case No. 18-CA-61                                                         26


participated in, or ratified as principal or master, the actions or omissions of an agent or

servant that demonstrates malice." Interrogatory No. 11. This finding referenced the

jury's findings that MOM tortiously interfered with the contract and engaged in unfair

competition.    Interrogatory Nos. 8 and 9.           Given our decision in reversing the

compensatory damages award against MOM on these two claims and the attendant

punitive damages award, we find any attorney fees awarded against MOM are no longer

warranted.

       {¶ 76} Appellants lastly argue the trial court abused its discretion in awarding

attorney fees without limiting the fees to the misappropriation claim against Greene.

Given that the judgment on the misappropriation claim is the only one remaining, along

with the attendant punitive damages award, we find the attorney fee award should be

recalculated to reflect this court's decision.

       {¶ 77} Attorney fees assessed against MOM are stricken.           The attorney fees

awarded against Greene are reversed and the matter is remanded to the trial court for

recalculation consistent with this opinion.

       {¶ 78} Assignment of Error V is granted in part and denied in part.

                                                 VI

       {¶ 79} In their sixth assignment of error, appellants claim the trial court abused its

discretion in granting MT injunctive relief. We disagree.

       {¶ 80} At the outset, we note the trial court granted MT a limited injunction of five

years, not a permanent injunction as argued by appellants. Whether to grant an injunction

rests in the trial court's sound discretion. Perkins v. Quaker City, 165 Ohio St. 120, 133

N.E.2d 595 (1956); Blakemore, supra.
Licking County, Case No. 18-CA-61                                                        27


       {¶ 81} R.C. 1333.62 governs injunctions under the Uniform Trade Secrets Act and

states the following:



              (A) Actual or threatened misappropriation may be enjoined. Upon

       application to the court, an injunction shall be terminated when the trade

       secret has ceased to exist, unless the court finds that termination of the

       injunction is likely to provide a person who committed an actual or

       threatened misappropriation with a resulting commercial advantage, in

       which case the injunction shall be continued for an additional reasonable

       time in order to eliminate commercial advantage that otherwise would be

       derived from the misappropriation.



       {¶ 82} In its July 5, 2018 judgment entry granting MT a limited injunction, the trial

court found the following:



              In the instant matter, we are dealing with a former employee

       (Greene) with comprehensive knowledge of an employer's trade secrets

       and confidential information that has not only begun employment with a

       competitor, but has also been found by a jury to have used those trade

       secrets and confidential information in an improper fashion. Further, there

       was evidence that the new employer (Modern Office Methods, Inc.)

       benefited from the conduct of their new employee (Greene) in using such
Licking County, Case No. 18-CA-61                                                         28


        information and was either aware of such conduct or was intentionally

        ignorant of the same.



        {¶ 83} The trial court noted that although MOM was found not to have

misappropriated trade secrets, actual or threatened misappropriation may be enjoined.

The trial court determined given the actions of appellants and the nature of their

relationship, MT's concern that MOM will engage in misappropriation of trade secrets is

justified.   The trial court found "[m]uch of the confidential information sought to be

protected may at some point become legitimately public information" and therefore a

permanent injunction "would be both excessively broad and unnecessary."

        {¶ 84} We concur with the trial court's decision.         The jury found Greene

misappropriated trade secrets.      He had in his possession confidential information

regarding MT's customers and their respective sales contracts and leases and service

agreements. Greene's position with MOM was in direct competition with MT. Under these

circumstances, Greene's use of MT's information and trade secrets was a very real threat.

        {¶ 85} Appellants argue the information sought to be protected no longer

constituted trade secrets because MT publicly filed the information with the trial court.

The trial court addressed this issue, noting it had previously issued a stipulated protective

order on November 20, 2017, and an order and entry on January 29, 2018.                 The

information sought to be protected was marked "CONFIDENTIAL – SUBJECT TO

PROTECTIVE ORDER" consistent with the instructions contained in the protective order.

Further, in its July 5, 2018 judgment entry, the trial court ordered the sealing of the

information sought to be protected.
Licking County, Case No. 18-CA-61                                                        29


       {¶ 86} Upon review, we find the trial court did not abuse its discretion in granting

MT a limited injunction.

       {¶ 87} Assignment of Error VI is denied.

                           CROSS-ASSIGNMENT OF ERROR I

       {¶ 88} In its first cross-assignment of error, MT claims the trial court abused its

discretion in denying its request for exemplary damages. We disagree.

       {¶ 89} Pursuant to R.C. 1333.63(B), if willful and malicious misappropriation exists,

a trial court "may award punitive or exemplary damages in an amount not exceeding three

times any award made" for actual damages and unjust enrichment.

       {¶ 90} Whether to award exemplary damages rests in the trial court's sound

discretion. Baker Equipment, Inc. v. Flynn, 12th Dist. Butler No. CA2002-12-313, 2004-

Ohio-1190; Blakemore, supra.

       {¶ 91} As discussed above, the jury found willful and malicious misappropriation

by Greene, and awarded MT $150,000 in compensatory damages. Interrogatory No. 3.

In a separate punitive damages verdict form, the jury awarded MT $40,000 as against

Greene. The record does not contain an interrogatory as to which specific claim(s) the

punitive damages award attaches to.

       {¶ 92} In its July 5, 2018 judgment entry denying the request for exemplary

damages, the trial court stated the following:



              While the Court found that limited attorney fees were appropriate

       based on the willful and malicious misappropriation of trade secrets

       pursuant to R.C. 1333.64(C), and further finds that the misappropriation was
Licking County, Case No. 18-CA-61                                                          30


       willful and malicious for purposes of considering exemplary damages

       pursuant to R.C. 1333.63(B), it does not believe an award is appropriate in

       this case.

              The Jury has already awarded punitive damages to the Plaintiff

       based in part on the conduct of the Defendant in the willful and malicious

       misappropriation of trade secrets. * * * To permit a second award of punitive

       or exemplary damages would have the effect of punishing the Defendant

       twice for the same conduct. While the Court does not state that a trier of

       fact is prohibited from awarding exemplary damages when punitive

       damages have been awarded by a jury for similar conduct, it does believe

       that an award of punitive damages for same or similar conduct can be

       considered when determining whether such an award is appropriate under

       the statute.



       {¶ 93} In considering the reprehensibility of Greene's conduct "with regards to the

appropriateness of punitive damages" and considering the evidence presented at trial

and the jury's imposition of punitive damages, the trial court found an additional award of

exemplary damages would be inappropriate.

       {¶ 94} MT argues the punitive damages award relates only to the jury finding of

unfair competition (Interrogatory No. 10), and the trade secret misappropriation claim was

separate and distinct from the punitive damages award. We disagree. A review of the

jury instructions indicates the trial court instructed the jury on punitive damages as follows

in relevant part (T. at 813):
Licking County, Case No. 18-CA-61                                                        31




              1. GENERAL. If you find that MT is entitled to compensatory

       damages against Greene and/or MOM on MT's claim(s) for (Breach of Duty

       of Good Faith and Loyalty (against Greene) / Trade Secret Misappropriation

       (against Greene and MOM) / Conversion (against Greene and MOM) /

       Unfair Competition (against Greene and MOM) / Tortious Interference with

       Contract (against MOM), you may now consider whether you will separately

       award punitive damages related to (those / that) (claims / claim).



       {¶ 95} The punitive damages instruction included the misappropriation claim. This

instruction was identical to the instruction MT requested in its proposed jury instructions

filed March 29, 2018.

       {¶ 96} The trial court went on to instruct the jury members if they were to find that

Greene or MOM acted with fraud or malice, they could then award punitive damages to

punish the offending party and to make the offending party examples to discourage others

from similar conduct. T. at 813-815. The trial court instructed the jury members on the

elements to consider in their determination on punitive damages. Id.

       {¶ 97} The jury found against Greene on MT's claims for unfair competition and

trade secret misappropriation. Interrogatory Nos. 3 and 5. The jury found Greene acted

with malice or fraud under the unfair competition claim and acted willfully and maliciously

under the misappropriation claim. Interrogatory Nos. 3 and 10. Without a specific

interrogatory relating to the punitive damages award, it is impossible to determine the

jury's intention regarding the award: did it attach to the unfair competition claim, the
Licking County, Case No. 18-CA-61                                                      32


misappropriation claim, or split between both? Regardless, the parties agreed to have

the jury determine a punitive damages award, and the jury did so. The jury considered

Greene's conduct and the damages sustained by MT, and awarded MT punitive damages

of a little over ten percent ($40,000) of the total compensatory award against Greene

($375,000). The trial court considered the jury's decision, Greene's conduct, and the

evidence presented, and declined to award anything additional.

      {¶ 98} Upon review, we find the trial court did not abuse its discretion in denying

MT's request for exemplary damages.

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

                         CROSS-ASSIGNMENT OF ERROR II

      {¶ 100} In its second cross-assignment of error, MT claims the trial court abused

its discretion in denying its request for prejudgment interest. We disagree.

      {¶ 101} Whether to award prejudgment interest rests in the trial court's sound

discretion. Kalain v. Smith, 25 Ohio St.3d 157, 495 N.E.2d 572 (1986); Blakemore, supra.

      {¶ 102} R.C. 1343.03 governs rate of interest on judgments. Subsection (C)

provides for the payment of interest on a judgment if:



               upon motion of any party to a civil action that is based on tortious

      conduct, that has not been settled by agreement of the parties, and in which

      the court has rendered a judgment, decree, or order for the payment of

      money, the court determines at a hearing held subsequent to the verdict or

      decision in the action that the party required to pay the money failed to make
Licking County, Case No. 18-CA-61                                                            33


       a good faith effort to settle the case and that the party to whom the money

       is to be paid did not fail to make a good faith effort to settle the case.



       {¶ 103} The party requesting the prejudgment interest bears the burden of

demonstrating that the other party failed to make a good faith effort to settle the case.

Broadstone v. Quillen, 162 Ohio App.3d 632, 2005-Ohio-4278, 834 N.E.2d 424, ¶ 27 (10th

Dist.), citing Loder v. Burger, 113 Ohio App.3d 669, 674, 681 N.E.2d 1357 (11th

Dist.1996).

       {¶ 104} In Kalain, supra, at syllabus, the Supreme Court of Ohio explained the

following:



                A party has not "failed to make a good faith effort to settle" under

       R.C. 1343.03(C) if he has (1) fully cooperated in discovery proceedings, (2)

       rationally evaluated his risks and potential liability, (3) not attempted to

       unnecessarily delay any of the proceedings, and (4) made a good faith

       monetary settlement offer or responded in good faith to an offer from the

       other party. If a party has a good faith, objectively reasonable belief that he

       has no liability, he need not make a monetary settlement offer.



       {¶ 105} In its July 5, 2018 judgment entry denying the request for prejudgment

interest, the trial court found appellants failed to fully cooperate with discovery, all parties

failed to evaluate the risks and potential liabilities of their respective case, none of the

parties attempted to delay the proceedings, and none of the parties made a good faith
Licking County, Case No. 18-CA-61                                                        34


reasonable settlement offer. Based upon the filings in the record pertaining to settlement

negotiations, we concur with the trial court's analysis under each category.

        {¶ 106} Upon review, we find the trial court did not abuse its discretion in denying

MT's request for prejudgment interest.

        {¶ 107} Cross-Assignment of Error II is denied.

                          CROSS-ASSIGNMENT OF ERROR III

        {¶ 108} In its third cross-assignment of error, MT claims the trial court abused its

discretion in denying in part its request for attorney fees.

        {¶ 109} Given our decision in Assignment of Error V to strike the attorney fees

assessed against MOM, we will review this cross-assignment as it pertains to Greene

only.

        {¶ 110} As stated in Assignment of Error V, we review a trial court's decision

regarding an award of attorney fees for abuse of discretion. Bittner v. Tri-County Toyota,

Inc., 58 Ohio St.3d 143, 569 N.E.2d 464 (1991); Blakemore, supra.

        {¶ 111} In determining the amount of reasonable attorney fees, a trial court should

first calculate the "lodestar" amount by multiplying the number of hours reasonably

expended by a reasonable hourly rate. Bittner, supra. After arriving at the lodestar figure,

a trial court may modify the amount based on the factors listed in Prof.Cond.R. 1.5 which

governs fees and expenses. Subsection (a) lists the following factors to be considered in

determining the reasonableness of a fee:
Licking County, Case No. 18-CA-61                                                            35


                 (1) the time and labor required, the novelty and difficulty of the

       questions involved, and the skill requisite to perform the legal service

       properly;

                 (2) the likelihood, if apparent to the client, that the acceptance of the

       particular employment will preclude other employment by the lawyer;

                 (3) the fee customarily charged in the locality for similar legal

       services;

                 (4) the amount involved and results obtained;

                 (5) the time limitations imposed by the client or by the circumstances;

                 (6) the nature and length of the professional relationship with the

       client;

                 (7) the experience, reputation, and ability of the lawyer performing

       the services;

                 (8) whether the fee is fixed or contingent.



       {¶ 112} In its May 15, 2018 motion for attorney fees, MT requested $226,228 for

attorney fees. MT presented the affidavits of trial counsel as well as detailed time entries

billed and expert opinion that the number of hours expended and the rates charged were

reasonable (Jackson Affidavit). In response, appellants argued any attorney fees award

should be limited to fees incurred with respect to the misappropriation claim. Appellants

did not contest the hourly rates.

       {¶ 113} In its July 5, 2018 judgment entry, the trial court granted attorney fees to

MT, but lowered the amount to $155,945, finding the following:
Licking County, Case No. 18-CA-61                                                        36




              The hourly rates for some of the legal services incurred by the

       Plaintiff are far in excess of those customarily charged in this county for

       similar legal services relative to both the hourly rate of the individual

       attorneys involved and the number of hours spent on the matter. And while

       Ohio law allows that when a firm involved has a statewide practice, its rates

       may be based upon its statewide rates, the Court is not required to award

       fees that are far in excess of the customary rate for similar work.

              For the most part, based on the facts of this case and the complex

       protracted and contentious litigation involved, and considering the factors

       listed in Rule 1.5 of the Ohio Rules of Professional Conduct, the Court finds

       the request for the attorney fees sought by the Plaintiff to be appropriate.

       However, not in the amount requested. In the Court's view, the hourly rate

       at which the Plaintiff's attorneys billed for their time was excessive

       compared to the fees customarily charged locally. Further, while this was

       not a simple case it was also not so complicated or technically difficult as to

       justify the rates suggested by the Plaintiff.



       {¶ 114} MT first argues the trial court abused its discretion in reducing each of its

attorney's hourly rates.

       {¶ 115} Pursuant to Prof.Cond.R. 1.5(a)(3), the trial court was permitted to

consider "the fee customarily charged in the locality for similar legal services" and as

stated above, the trial court's determination is reviewed under an abuse of discretion
Licking County, Case No. 18-CA-61                                                          37


standard. "The trial judge which participated not only in the trial but also in many of the

preliminary proceedings leading up to trial has an infinitely better opportunity to determine

the value of services rendered by lawyers who have tried a case before him than does an

appellate court." Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc., 23 Ohio App.3d 85, 91,

491 N.E.2d 345 (12th Dist.1985).

       {¶ 116} Upon review, we cannot say the trial court abused its discretion in lowering

the hourly rates.

       {¶ 117} MT also argues the trial court abused its discretion in proportionately

awarding attorney fees to the number of successful claims.

       {¶ 118} Although the trial court recognized that "a court should not reduce attorney

fees based on a simple ratio of successful claims raised," the trial court stated it carefully

considered the matter and found such a division to be appropriate. The trial court

considered determining the amount of fees associated with the individual claims proven

by appellants, but found it "proved to be administratively impractical such that the Court

finds the proportional division is appropriate." July 5, 2018 Judgment Entry at fn. 11. In

determining this issue, the trial court incorporated by reference the following factors it

considered in determining costs:



                Dividing the costs as noted above might appear to be nothing more

       than a formulaic division based on the interrogatories. However, the Court

       has carefully reviewed the facts of this case, the interrogatories from the

       jury and all of the evidence presented during the trial and finds that this

       percentage of division is appropriate. The Court acknowledges that some
Licking County, Case No. 18-CA-61                                                        38


       of the claims brought arguably involved core facts or were based on similar

       legal theories and considered this fact when reaching the above division.

       Further, the Court considered the motions filed in this case, the handling of

       discovery, the claims brought by the Plaintiff and the manner in which this

       case was prosecuted.



       {¶ 119} Upon review, we cannot say the trial court abused its discretion in

proportionately awarding attorney fees.

       {¶ 120} Upon review, we find the trial court did not abuse its discretion in denying

in part MT's request for attorney fees, subject to this court's directive in Assignment of

Error V.

       {¶ 121} Cross-Assignment of Error III is denied.

                         CROSS-ASSIGNMENT OF ERROR IV

       {¶ 122} In its fourth cross-assignment of error, MT claims the trial court abused its

discretion in denying in part its request for costs. We disagree.

       {¶ 123} We review a trial court's decision regarding the assessment of costs for

abuse of discretion. Taylor v. McCullough Hyde Memorial Hospital, 116 Ohio App.3d

595, 688 N.E.2d 1078 (12th Dist.1996); Blakemore, supra.

       {¶ 124} Civ.R. 54(D) governs "costs" and states: "Except when express provision

therefor is made either in a statute or in these rules, costs shall be allowed to the

prevailing party unless the court otherwise directs." "Denying costs to both parties can

be appropriate when neither party entirely prevails." State ex rel. Reyna v. Natalucci-

Persichetti, 83 Ohio St.3d 194, 198, 699 N.E.2d 76 (1998).
Licking County, Case No. 18-CA-61                                                       39


       {¶ 125} In assessing court costs, the trial court used the same proportionality

approach as in determining attorney fees, considering the factors cited in Cross-

Assignment of Error III. As in that assignment of error, we do not find the trial court

abused its discretion in utilizing such an approach. However, as we found in Assignment

of Error V, given that the judgment on the misappropriation claim is the only one

remaining, along with the attendant punitive damages award, we find the assessment of

costs should be recalculated to reflect this court's decision.

       {¶ 126} Cross-Assignment of Error IV is granted in part and denied in part.

       {¶ 127} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed in part and reversed in part. The matter is remanded to said court in light

of this court's opinion to recalculate the attorney fee award and costs and to enter final

judgment accordingly.

By Wise, Earle, J.

Hoffman, P.J. and

Delaney, J. concur.




EEW/db
