[Cite as Drone Consultants, L.L.C. v. Armstrong, 2016-Ohio-3222.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




DRONE CONSULTANTS, LLC,                                :
                                                                    CASE NOS. CA2015-11-107
      Plaintiff-Appellant/Cross-Appellees,             :                      CA2015-11-108

                                                       :                 OPINION
   - vs -                                                                 5/31/2016
                                                       :

SUSAN ARMSTRONG, et al.,                               :

      Defendant-Appellees/Cross-Appellants. :



         CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                            Case No. 14 CV 86493



Daniel J. Picard, 110 Old Street, Monroe, Ohio 45050, for appellant/cross-appellee, Drone
Consultants, Inc., and Barbara and Allen Drone, third party defendants

Elizabeth S. Loring, 9545 Kenwood Road, Suite 301, Cincinnati, Ohio 45242, for
appellees/cross-appellants, Susan Armstrong, Darlene Cassidy, Carolyn Disney, Elisa Duron,
Brenda England, and Vickie Pruitt



        RINGLAND, J.

        {¶ 1} Plaintiff-appellant, Drone Consultants, LLC, appeals the decision of the Warren

County Court of Common Pleas, granting summary judgment in favor of defendants-

appellees, six former employees. In addition, the former employees cross-appeal from a

decision granting summary judgment in favor of Drone on claims for defamation and unlawful

restraint of trade. For the reasons detailed below, we affirm.
                                                                   Warren CA2015-11-107
                                                                          CA2015-11-108

       {¶ 2} Drone Consultants is a temporary staffing agency owned by Barbara and Allan

Drone that supplies temporary employees to companies. Procter & Gamble is a principal

client of Drone. As a corporate strategic decision, Procter & Gamble determined that it would

no longer contract directly with staffing agencies, but would instead obtain temporary

employees pursuant to a Channel Program Supplier Agreement ("CPS Agreement"). Volt

Information Services served as a Channel Program Supplier for Procter & Gamble. As Drone

was not designated as a Channel Program Supplier, it could not directly supply workers to

Procter & Gamble, but instead would be required to contract through an intermediary, such

as Volt.

       {¶ 3} As a result of this policy, Drone entered into a CPS Agreement with Volt, which

permitted Drone to provide employees to Procter & Gamble. Drone's CPS Agreement with

Volt permitted it to terminate the agreement without cause upon 30 days' notice. The CPS

Agreement also provided:

             In the event the Agreement is terminated at [Drone's] initiative,
             other than for a material breach by [Volt or Procter & Gamble]
             which remains uncured after the expiration of a reasonable cure
             period, [Drone] agrees that any restrictions regarding [Procter &
             Gamble's] employment of Contingent Workers furnished to
             [Procter & Gamble] during the term of this Agreement will be
             waived. [Drone] will release, effective on the termination, any
             limitation on Contingent Worker's subsequent employment in any
             manner by [Procter & Gamble].

       {¶ 4} In 2013, Procter & Gamble issued a purchase order to Volt to provide services

for its Mason Business Center. Drone provided the six employees to serve as corporate

administrators pursuant to the terms of the purchase order. The six employees who Drone

provided to Procter & Gamble through Volt each signed employment agreements with Drone.

As relevant here, those employment agreements contained limitation provisions, which

stated:

             If, for any reason, the employee decides to vacate said

                                             -2-
                                                                      Warren CA2015-11-107
                                                                             CA2015-11-108

              temporary position, a two (2) week written notice is to be given to
              Drone Consultants LLC in order for Drone Consultants LLC to
              recruit and train a replacement employee for said position. The
              employee vacating the position agrees that he/she will not return
              to said position through any other contracting company.

       {¶ 5} On May 27, 2014, Drone's attorney sent a letter to Volt giving notice of its

termination of the CPS Agreement effective July 1, 2014 pursuant to the "without cause"

provision in the agreement. Drone also advised Procter & Gamble of the termination of the

CPS Agreement. Because of its corporate policy, Procter & Gamble would not directly

contract with Drone for the services of the six employees, and that policy was reaffirmed to

Drone on June 4, 2014, June 10, 2014, and June 17, 2014. As a result, Procter & Gamble

chose not to renew the purchase order for the six employees. In a letter to Procter & Gamble

confirming his understanding, Allan Drone wrote "[s]ince our people cannot remain in these

positions, I will be notifying them today that their last day will be June 30." Thereafter, Allan

notified the six employees that the purchase order would not be renewed and they would no

longer be employed after June 30, 2014.

       {¶ 6} On June 19, 2014, Drone emailed the six employees stating that June 27 was

their last day at Procter & Gamble, as it was the final Friday before the purchase order

expired. The six employees were separately informed that Drone had no other positions for

them at the time and they may seek unemployment benefits because they could not remain

in their positions at Procter & Gamble.

       {¶ 7} To fill the soon-to-be vacant corporate administrator positions at Procter &

Gamble, Volt contracted with On-Line Design, another temporary staffing company, and

entered an agreement to provide six temporary employees. The six employees associated

with Drone were interviewed by On-Line Design and subsequently hired to staff the same

positions under the terms of the new purchase order to take effect on July 1, 2014. On June

18, 2014, the six employees each signed a "Confidential Agreement" as an employee of On-

                                               -3-
                                                                     Warren CA2015-11-107
                                                                            CA2015-11-108

Line Design. The six employees remained in their association with Drone and in their

temporary positions at Procter & Gamble until they could no longer continue those positions

as employees of Drone. On July 1, 2014, following the expiration of the original purchase

order, the six employees commenced work as employees of On-Line Design in the same

positions at Procter & Gamble that they held as employees of Drone.

       {¶ 8} On September 17, 2014, Drone emailed all of its current employees and

advised them that the six employees had left Drone and joined a competitor without providing

Drone with the two-week notice required by their employment contracts. The email stated

that Drone was consulting with its attorney regarding what the six employees "owed" Drone

due to their breach of contract and warned their current employees of possible

consequences for breach of contract.

       {¶ 9} Drone sued the six employees for breach of contract. The six employees

answered and counterclaimed for defamation and unfair competition. All parties moved for

summary judgment. Ultimately, the trial court granted summary judgment in favor of the six

employees in the breach of contract action. In addition, the trial court granted summary

judgment in favor of Drone on the employees' claims for defamation and unfair competition.

Drone Consultants now appeals the decision of the trial court, raising one assignment of error

for review, and the employees' cross-appeal, raising two assignments of error for review.

       {¶ 10} Assignment of Error No. 1:

       {¶ 11} THE TRIAL COURT ERRED BY GRANTING APPELLEE'S MOTION FOR

SUMMARY JUDGMENT.

       {¶ 12} In its first assignment of error, Drone alleges the trial court erred by granting

summary judgment in favor of the former employees in the breach of contract action. We

find no merit to Drone's argument.

       {¶ 13} This court reviews summary judgment decisions de novo, which means we

                                              -4-
                                                                        Warren CA2015-11-107
                                                                               CA2015-11-108

review the trial court's judgment independently and without deference to the trial court's

determinations, using the same standard in our review that the trial court should have

employed. Ludwigsen v. Lakeside Plaza, L.L.C., 12th Dist. Madison No. CA2014-03-008,

2014-Ohio-5493, ¶ 8. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1)

there is no genuine issue of any material fact, (2) the moving party is entitled to judgment as

a matter of law, and (3) the evidence submitted can only lead reasonable minds to a

conclusion which is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82

Ohio St.3d 367, 369-70 (1998).

       {¶ 14} In reviewing a contract, the court's primary role is to ascertain and give effect to

the intent of the parties. Baruk v. Heritage Club Homeowners' Assn., 12th Dist. Warren No.

CA2013-09-086, 2014-Ohio-1585, ¶ 60. In ascertaining the intent of the parties, the court

must presume that the intent resides in the language the parties chose to employ in the

agreement. Towne Dev. Grp., Ltd. v. Hutsenpiller Contrs., 12th Dist. Butler No. CA2012-09-

081, 2013-Ohio-4326, ¶ 17.

       {¶ 15} "A contract that is, by its terms, clear and unambiguous requires no

interpretation or construction and will be given the effect called for by the plain language of

the contract." Cooper v. Chateau Estate Homes, L.L.C., 12th Dist. Warren No. CA2012-07-

061, 2010-Ohio-5186, ¶ 12. A contract is ambiguous if its provisions are susceptible to two

or more reasonable interpretations. Id. "[W]here there is doubt or ambiguity in the language

of a contract it will be construed strictly against the party who prepared it. * * * In other words,

he who speaks must speak plainly or the other party may explain to his own advantage."

McKay Mach. Co. v. Rodman, 11 Ohio St.2d 77, 80 (1967). Whether a contract's terms are

clear or ambiguous is a question of law for the court. O'Bannon Meadows Homeowners

Assn., Inc. v. O'Bannon Properties, L.L.C., 12th Dist. Clermont No. CA2012-10-073, 2013-

Ohio-2395, ¶ 20.
                                                -5-
                                                                     Warren CA2015-11-107
                                                                            CA2015-11-108

       {¶ 16} As previously noted, the six employees each signed an employment contract

with Drone. In relevant part, the contract states:

              If, for any reason, the employee decides to vacate said
              temporary position, a two (2) week written notice is to be given to
              Drone Consultants LLC in order for Drone Consultants LLC to
              recruit and train a replacement employee for said position. The
              employee vacating the position agrees that he/she will not return
              to said position through any other contracting company.

       {¶ 17} In construing the employment contract, it is relevant that the above-referenced

citation has two clauses. The first clause provides that any employee who "decides to

vacate" the temporary position must provide a two-week written notice "in order for [Drone] to

recruit and train a replacement employee for said position." The second clause provides that

the employee "vacating the position" agrees not to return to the same position through

another contracting agency.

       {¶ 18} Drone alleges the former employees breached both clauses of the employment

contract. The trial court granted summary judgment in favor of the former employees after

concluding that they did not "decide to vacate" their positions for purpose of triggering the

clauses contained in the employment agreements.

       {¶ 19} Based on our review of the record, we agree with the trial court's interpretation

of the agreement and find judgment was appropriately granted in favor of the former

employees. In the present case, Drone cannot present any evidence that the former

employees "decide[d] to vacate" their temporary positions for purposes of triggering the

responsibilities contained in the first clause of the employment agreement. The relevant

facts are undisputed. Here, the former employees were continuously employed in the

temporary positions with Procter & Gamble until the purchase order with Drone expired.

Because Drone terminated the CPS Agreement with Volt, the corporate administrator

positions were no longer available. Drone was well-aware that those positions were no


                                              -6-
                                                                     Warren CA2015-11-107
                                                                            CA2015-11-108

longer available, as it informed the former employees as such, and even informed them that

they were eligible for unemployment compensation.

       {¶ 20} On appeal, Drone argues that the trial court misinterpreted the language

contained in the contract, and this court should construe the "Confidential Agreement" that

the former employees signed with On-Line Design as "explicit evidence that they voluntarily

chose to vacate their employment with" Drone. However, we decline to adopt Drone's

position. The evidence here is undisputed that the former employees continued to work in

the corporate administrator positions throughout the entirety of the purchase order. There is

no provision contained in the former employees' employment contracts that would prohibit

them from entering into another agreement with a new company or accept additional

employment, i.e., "moonlighting." Simply, the former employees did not "decide to vacate"

their positions; they were forced out.

       {¶ 21} Because there is no genuine issue of material fact to support a claim that the

former employees "decide[d] to vacate," the relevant provision requiring two weeks' notice

was not applicable. As "at will" employees, the former employees were well within their rights

to leave Drone's employ. This conclusion is further supported by the expressed purpose of

the clause, which states that the two-week notice provision is required "in order for Drone

Consultants LLC to recruit and train a replacement employee for said position." As Drone

terminated its agreement with Volt and could not fill the corporate administrator positions at

Procter & Gamble, Drone's position on this matter defies logic. The former employees did

not "decide to vacate" their positions for purposes of triggering the responsibilities contained

in the relevant clause.

       {¶ 22} With respect to the second clause, which prohibits "the vacating employee"

from "employment in the same position," we similarly find no breach. Drone alleges that the

term "vacating employee" should be given a broad interpretation to prohibit a former

                                              -7-
                                                                  Warren CA2015-11-107
                                                                         CA2015-11-108

employee, in circumstances such as these, from accepting employment in the same position

through another contracting company. However, in construing the relevant provisions and

interpreting the contract between the parties, we are mindful who the terms should be

considered within the context of the entire paragraph. As addressed above, the preceding

sentence references obligations for an employee who "decides to vacate" a position. The

next sentence, however, refers to only the term "vacating employee." "Often the intended

meaning of a word or phrase may be clear when that word or phrase is considered in the

context of other words or phrases in the contract."        EnQuip Techs. Grp. v. Tycon

Technoglass, 2d Dist. Greene No. 2011-CA-39, 2012-Ohio-6181, ¶ 16. Thus, the intended

meaning of any part of the parties' contract should be determined in light of the whole

contract. Dayton Outpatient Ctr., Inc. v. OMRI of Pensacola, Inc., 2d Dist. Montgomery No.

26169, 2014-Ohio-4105, ¶ 13, citing Foster Wheeler Enviresponse, Inc. v. Franklin Cty.

Convention Facilities Auth., 78 Ohio St.3d 353, 361 (1997) (the court should read the

contract as a whole and gather the intent of each part from the whole).

      {¶ 23} In the present case, the term "vacating employee" follows and refers to the

clause relating to an employee who has "decide[d] to vacate" a position. As noted above, the

former employees did not "decide to vacate" their positions, but instead were no longer able

to continue working in those positions due to Drone's termination of the CPS Agreement.

Therefore, we disagree with Drone's position and find the relevant clause should not be

provided such a broad interpretation as to prohibit the former employees from returning to

their positions at Procter & Gamble. In so holding, we also reiterate the well-established

principle that courts must construe ambiguous terms against the drafter. Walter v. Agoston,

12th Dist. Warren No. CA2003-03-039, 2004-Ohio-2488, ¶ 13; Revocable Living Trust of

Mandel v. Lake Erie Util. Co., 6th Dist. Ottawa No. OT-15-010, 2016-Ohio-1396, ¶ 11. If

Drone intended the term "vacating employee" to encompass a broader term than spelled out
                                            -8-
                                                                        Warren CA2015-11-107
                                                                               CA2015-11-108

in the context of the employment contract, it could have included provisions to that effect. As

a result, we disagree with Drone's position and find that the former employees did not breach

the terms of their employment contract with Drone.

       {¶ 24} In light of the foregoing, we find the trial court properly granted summary

judgment in favor of the former employees in Drone's breach of contract action. Analyzing

the plain and unambiguous language of the contract makes clear that the former employees

did not "decide to vacate" the temporary positions, nor did they breach any term of the

employment contract. Therefore, Drone's sole assignment of error is without merit and

overruled.

       {¶ 25} Cross-Assignment of Error No. 1:

       {¶ 26} THE TRIAL COURT ERRED IN GRANTING DRONE CONSULTANT'S

MOTION FOR SUMMARY JUDGMENT MOTION [sic] ON THE EMPLOYEES' CLAIM FOR

DEFAMATION AND LIBEL.

       {¶ 27} In their first cross-assignment of error, the former employees allege the trial

court erred in granting summary judgment in favor of Drone in the respective counterclaims

for defamation and libel.1

       {¶ 28} Defamation is a false statement published by a defendant acting with the

required degree of fault that injures a person's reputation, exposes the person to public

hatred, contempt, ridicule, shame or disgrace, or adversely affects the person's profession.

Becker v. Internatl. Assn. of Firefighters Local 4207, 12th Dist. Warren No. CA2010-03-029,

2010-Ohio-3467, ¶ 9. There are two forms of defamation, including libel or slander. The

term slander refers to spoken defamatory words and libel refers to written defamatory words.

Woods v. Capital Univ., 10th Dist. Franklin No. 09AP-166, 2009-Ohio-5672, ¶ 27.



1. The counterclaim named both Drone, the company, and Barbara and Allan Drone, as individuals. For
purposes of clarity, we will continue to use the term Drone to refer to both.
                                                -9-
                                                                     Warren CA2015-11-107
                                                                            CA2015-11-108

       {¶ 29} Generally, the essential elements of a defamation action, whether slander or

libel, are that "the defendant made a false statement, that the false statement was

defamatory, that the false defamatory statement was published, that the plaintiff was injured

and that the defendant acted with the required degree of fault." Heidel v. Amburgy, 12th Dist.

Warren No. CA2002-09-092, 2003-Ohio-3073, ¶ 14.

       {¶ 30} Defamatory statements may further fall under two categories: defamation per

se and defamation per quod. McWreath v. Cortland Bank, 11th Dist. Trumbull No. 2010-T-

0023, 2012-Ohio-3013, ¶ 42. Defamation per se occurs when a statement is defamatory on

its face; defamation per quod occurs when a statement is defamatory through interpretation

or innuendo. Whiteside v. United Paramount Network, 12th Dist. Madison No. CA2003-02-

008, 2004-Ohio-800, ¶ 14. When a complaint alleges defamation per se, damages are

presumed; when a complaint alleges defamation per quod, the complaint must allege special

damages. Williams v. Gannett Satellite Information Network, Inc., 1st Dist. Hamilton No. C-

040635, 2005-Ohio-4141, at ¶ 7. "For a statement to constitute defamation per se, it must

'consist of words which import an indictable criminal offense involving moral turpitude or

infamous punishment, impute[ ] some loathsome or contagious disease which excludes one

from society or tend[ ] to injure one in his trade or occupation.'" Whiteside v. Williams, 12th

Dist. Madison No. CA2006-06-021, 2007-Ohio-1100, ¶ 5, quoting Heidel at ¶ 30.

       {¶ 31} In the present case, the former employees claim Drone's September 17, 2014

email constitutes defamation per se because the statements therein damage them in their

trade or occupation. Because many of Drone's remaining employees who received that

email work for Procter & Gamble, the former employees claim Drone's email "tended to

degrade them in their position or profession." In pertinent part, the email stated:

              At the end of June, six of our employees left our company to go
              work for one of our competitors, On Line Design Inc. doing the
              exact same job which they did for us. Their departure was in
                                             - 10 -
                                                                     Warren CA2015-11-107
                                                                            CA2015-11-108

              direct violation of our employment agreement, Section B, which
              states:

              b) "If, for any reason, the employee decides to vacate said
              temporary position, a two (2) week written notice is to be given to
              Drone Consultants LLC in order for Drone Consultants to recruit
              and train a replacement employee for said position. The
              employee vacating the position agrees that he/she will not return
              to said position through any other contracting company."

              They failed to provide us two week notice prior to their
              resignation of their employment with us and they further violated
              the Agreement by accepting employment in a position which they
              had while employed by us.

              The Employment Agreement is a valid contract between Drone
              Consultants, LLC and the employees. These employees who
              violated our contract have been advised of this breach of
              contract and have been informed of the possible consequences.

              Drone Consultants, LLC will do whatever it takes to enforce all of
              the provisions of our Employment Agreement and our attorney is
              currently engaged in conversations with their attorney regarding
              what these former employees will be required to pay us for their
              breach of contract.

       {¶ 32} The trial court granted summary judgment in favor of Drone after concluding

that there was no evidence that the email was defamatory or caused injury to the reputation

of the former employees in their professional capacity.

       {¶ 33} Based on our review of the record, we agree with the trial court and find

summary judgment in this matter was appropriate. The email sent by Drone, although

perhaps misleading and subject to interpretation does not rise to the level of actionable

defamation. As to the first element for a defamation claim, Ohio courts "ha[ve] defined a

false statement as a statement that sets forth matters which are not true or statements

without grounds in truth or fact. A statement is not a 'false statement' if, even though it is

misleading and fails to disclose all relevant facts, the statement has some truth in it.

Moreover, a statement that is subject to different interpretations is not 'false.'" Serv. Emp.

Internatl. Union Dist. 1199 v. Ohio Elections Comm., 158 Ohio App.3d 769, 2004-Ohio-5662,

                                             - 11 -
                                                                        Warren CA2015-11-107
                                                                               CA2015-11-108

¶ 18 (10th Dist.).

       {¶ 34} Here, Drone's email is a representation of the position that it has taken

throughout this entire case. Namely, Drone claims that the former employees breached their

employment agreement with the company and are liable for damages. Although Drone's

breach of contract claims have proven unsuccessful, and the email did not disclose all

relevant facts, the statements made are subject to multiple interpretations that do not rise to

a claim for actionable defamation. Simply, the allegedly defamatory language contained in

the email was a matter of contractual interpretation that was subject to reasonable dispute

between the parties. Furthermore, we agree with the trial court that the former employees

have not shown any evidence, beyond mere speculation, that their professional reputations

were injured as a result of this email. As a result, we find the trial court did not err in granting

summary judgment on the defamation claim. Therefore, we find the first cross-assignment of

error is without merit and overruled.

       {¶ 35} Cross-Assignment of Error No. 2:

       {¶ 36} THE TRIAL COURT ERRED IN GRANTING DRONE CONSULTANT'S

MOTION FOR SUMMARY JUDGMENT MOTION [sic] ON THE EMPLOYEES' CLAIM FOR

UNLAWFUL RESTRAINT OF TRADE.

       {¶ 37} In their second cross-assignment of error, the former employees allege the trial

court erred by granting Drone summary judgment in the action for unlawful restraint of trade.

We find no merit to this argument.

       {¶ 38} To successfully establish an unfair competition claim based upon legal action, a

party must show that the legal action is objectively baseless and that the opposing party had

the subjective intent to injure the party's ability to be competitive. Am. Chem. Soc. v.

Leadscope, Inc., 133 Ohio St. 3d 366, 2012-Ohio-4193, ¶ 37.

       {¶ 39} In the present case, we find Drone's legal action for breach of contract was not
                                               - 12 -
                                                                    Warren CA2015-11-107
                                                                           CA2015-11-108

"objectively baseless" for purposes of establishing the requirements for unfair competition.

Although the trial court granted summary judgment in favor of the former employees in that

action, a finding in favor of the opposing party does not mean that the action was necessarily

"objectively baseless." As discussed above, Drone brought this action based upon an

alleged breach of contract involving the interpretation of the relevant employment contracts.

Although unsuccessful, this court cannot find that the action was so unmeritorious as to

warrant a finding of "objectively baseless." As a result, this court need not decide whether

the former employees could prove some subjective intent on behalf of Drone. Therefore, the

second cross-assignment of error is without merit and overruled.

       {¶ 40} Judgment affirmed.


       M. POWELL, P.J., and S. POWELL, J., concur.




                                            - 13 -
