[Cite as Enduring Wellness, L.L.C. v. Roizen, 2020-Ohio-3180.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

ENDURING WELLNESS, L.L.C.,                            :

                Plaintiff-Appellant,                  :
                                                                 No. 108681
                v.                                    :

MICHAEL F. ROIZEN, M.D., ET AL.,                      :

                Defendants-Appellees.                 :



                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: June 4, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-19-909042


                                            Appearances:

                Seeley, Savidge, Ebert & Gourash Co., L.P.A., Jeffrey S.
                Moeller, and Daniel F. Gourash, for appellant.

                Hahn, Loeser, & Parks, L.L.P., Robert J. Fogarty, E. Sean
                Medina, and David M. Hopkins, for appellees.


MARY EILEEN KILBANE, J.:

                  Plaintiff-appellant, Enduring Wellness, L.L.C. (“EW”), appeals from

the order of the trial court that dismissed all five counts alleged in its complaint

against defendants-appellees, Michael R. Roizen, M.D. (“Roizen”) and Cleveland
Clinic Wellness Enterprise, L.L.C. (“CCWE”) under Civ.R. 12(B)(6) for failing to

state a claim upon which relief can be granted.

                  For the reasons that follow, we affirm the trial court.

I.    Factual Background

                  The facts as alleged in the complaint and documents attached to it

are as follows.

      A.     The Licensing Agreement

                  On June 17, 2015, CCWE, a subsidiary of the Cleveland Clinic

Foundation (“CCF”), entered into a “Non-Exclusive Strategic Alliance Agreement

Related To Manufacturing And Distribution Of Certain Products” (“Licensing

Agreement”) with a company called Balance Product Development, Inc.               On

December 21, 2015, the Licensing Agreement was assigned from Balance Product

Development, Inc. to EW with CCWE’s written consent.

                  The Licensing Agreement is signed by Tom Gubanc (“Gubanc”) on

behalf of CCF. Gubanc is a Senior Director of CCWE. Roizen is not party to the

contract.   The Licensing Agreement set forth terms for the development,

marketing, and sale of wellness products — here, pillows — that would be

marketed as approved by CCWE. CCWE was to receive a percentage-based royalty

on sales in exchange for its licensed approval branding.

      B.     Roizen

                  According to the complaint, Roizen is the Chief Wellness Officer of

CCWE. He was “involved in developing, testing and approving Enduring Wellness’
pillows” and “held himself out as having actual authority to act on behalf of CCWE

in administering the Licensing Agreement, and CCWE allowed him to so hold

himself out.”

      C.    EW’s Pillows

                Between 2015 and 2016, EW incurred expenses in the course of

manufacturing, marketing, obtaining necessary approvals for, and making ready to

sell a line of pillows branded as CCWE-approved.

                CCWE and Roizen reviewed and approved samples of the pillows to

be marketed and sold with CCWE’s approved branding.           In November 2016,

CCWE approved packaging for the pillows. The complaint does not expressly

allege that EW received approval from CCWE in writing, but states that EW

obtained all necessary approvals.

      D.    The Aeroscena Sublicense

                Around May 2016, Roizen and Gubanc, Senior Director of CCWE,

together approached EW with a proposal by which EW would sublicense the

CCWE approval to a business called Aeroscena, L.L.C. (“Aeroscena”), which owned

a brand of aromatic oils. Roizen was an equity owner in Aeroscena, but EW did

not know that at this time. EW declined to sublicense Aeroscena after it was

advised that CCWE would separately license Aeroscena. The complaint does not

clarify who initially advised EW that CCWE would separately license Aeroscena

rather than authorize a sublicense. What is clear is that EW initially declined to

sublicense Aeroscena after learning that it did not have CCWE’s approval to do so.
              Close to a year later, around January 2017, Roizen advised EW that

Aeroscena would not be licensed directly by CCWE, but instead would be

sublicensed through EW. Relying on Roizen’s actual or apparent authority to act

on behalf of CCWE, EW began negotiating a sublicense with Aeroscena. EW relied

on Roizen’s approval of the sublicense even though it knew CCWE had refused to

allow EW to grant Aeroscena a sublicense several months earlier.

              Roizen also advised around this time that a “summary in-house

review of the pillows might be needed.” This claim was “contrary to all prior

approvals and assurances from both him, as CCWE’s actual or apparent agent, and

others at CCWE.” Roizen also stated that Aeroscena wanted to attend a trade show

in Las Vegas in March 2017, and indicated a “need for haste.”

      E.    The Las Vegas Trade Show

              EW and Aeroscena shared booth space at a Las Vegas trade show in

March 2017, during negotiations for the sublicense that CCWE initially refused to

grant. Roizen attended the trade show where he marketed a book he authored and

also marketed Aeroscena’s essential oils, which were displayed as though they

branded as CCWE-approved.

      F.    Contract Termination

              Two days after the Las Vegas trade show, CCWE “purported to

terminate Enduring Wellness’ Licensing Agreement.”        Around this time, EW

learned that Roizen was an equity owner in Aeroscena.
      G.     The QVC Launch Show

              The pillows were scheduled for a test-marketing product launch on

QVC on or around June 21, 2017, for EW’s pillows. CCWE and Roizen were aware

of the QVC launch and the expenses EW incurred in preparing for it. CCWE

prepared another doctor, Dr. Bang, to appear on QVC for the launch show while

wearing CCWE logo gear.

              The QVC launch show took place about three months after CCWE

had terminated the Licensing Agreement. The pillows were still marketed during

the scheduled test launch on QVC, but without the CCWE-approved branding and

at a lower price. The test launch was not rebroadcast. It appears from the

complaint that no pillow sales occurred before the QVC launch show in June 2017.

              Afterwards, EW lost other contracts related to the pillows and

incurred approximately $450,000 in costs related to research, development, and

marketing of the pillows.

II.   Procedural Background

              On January 2, 2019, EW filed its complaint. It raised three claims

against Roizen: (1) tortious interference with contract; (2) fraud; and (3) deceptive

trade practices under R.C. 4165.02 and R.C. 4165.03 (Counts 1-3). It raised two

claims against CCWE: (1) breach of contract and (2) liability for acts of agent with

apparent authority/agency by estoppel (Counts 4 and 5).

              On April 4, 2019, Roizen and CCWE filed a Civ.R. 12(B)(6) motion to

dismiss the complaint for failure to state a claim upon which relief may be granted.
On April 16, 2019, EW opposed the motion to dismiss, and the defendants-

appellants filed a reply to EW’s opposition on May 14, 2019.

                  The trial court held a hearing on the motion to dismiss on May 22,

2019. It granted the motion to dismiss on June 6, 2019, on the grounds that EW

failed to state a claim upon which relief could be granted. This appeal followed.

                  EW has assigned one error for review:

                                Assignment of Error No. 1

          The trial court erred by dismissing the complaint for failure to state a
          claim under Ohio R. Civ. P. 12(B)(6); [e]ach and every count of the
          complaint stated a claim upon which relief could be granted,
          construing the facts most favorably to plaintiff.

III.      Standard of Review

                  This court applies a de novo standard of review of a trial court’s

ruling on a Civ.R. 12(B)(6) motion to dismiss. Perrysburg Twp. v. Rossford, 103

Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5, citing Cincinnati v. Beretta

U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136. A trial court

may grant a motion to dismiss for failure to state a claim upon which relief can be

granted where it appears “beyond doubt from the complaint that the plaintiff can

prove no set of facts entitling [him] to relief.” Thompson v. Cuyahoga Cty. Clerk

of Courts, 8th Dist. Cuyahoga No. 108806, 2020-Ohio-382, ¶ 7-8, quoting Grey v.

Walgreen Co., 197 Ohio App.3d 418, 2011-Ohio-6167, 967 N.E.2d 1249, ¶ 3 (8th

Dist.).

                  In construing a complaint upon a motion to dismiss for failure to

state a claim, we must presume that all factual allegations of the complaint are true
and make all reasonable inferences in favor of the nonmoving party. Mitchell v.

Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). “Under these

rules, a plaintiff is not required to prove his or her case at the pleading stage. * * *

Consequently, as long as there is a set of facts, consistent with the plaintiff’s

complaint, which would allow the plaintiff to recover, the court may not grant a

defendant’s motion to dismiss.” Schmitz v. NCAA, 2016-Ohio-8041, 67 N.E.3d

852, ¶ 9 (8th Dist.), quoting York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143,

144-145, 573 N.E.2d 1063 (1991).

               “Under Ohio’s liberal pleading rules, all that is required of a plaintiff

bringing suit is (1) a short and plain statement of the claim showing that the party

is entitled to relief, and (2) a demand for judgment for the relief to which the party

claims to be entitled. Unlike other claims, however, fraud claims must be plead

with particularity as required under Civ.R. 9(B).” (Citations omitted). Hammon v.

Huntington Natl. Bank, 2018-Ohio-87, 102 N.E.3d 1248, ¶ 58-59 (8th Dist.).

               However, even under Ohio’s notice-pleading standard, a cause of

action must be factually supported and courts need not accept bare assertions of

legal conclusions. Tuleta v. Med. Mut. of Ohio, 2014-Ohio-396, 6 N.E.3d 106, ¶ 28

(8th Dist.). “[B]are legal conclusions are not considered admitted and are not

sufficient to withstand a motion to dismiss.” Harper v. Weltman, Weinberg &

Reis Co., L.P.A., 8th Dist. Cuyahoga No. 107439, 2019-Ohio-3093, ¶ 33.

               Where a contract governs the parties’ rights, “[d]ismissals under

Civ.R. 12(B)(6) are proper where the language of the writing is clear and
unambiguous.” Abdallah v. Doctor’s Assocs., 8th Dist. Cuyahoga No. 89157, 2007-

Ohio-6065, ¶ 3, quoting Fairview Realty Investors v. Seaair, Inc., 8th Dist.

Cuyahoga No. 81296, 2002-Ohio-6819. “A motion to dismiss should be granted

‘only where the allegations in the complaint show the court to a certainty that the

plaintiff can prove no set of facts upon which he might recover,’ or, in the case of a

complaint seeking relief under a contract attached pursuant to Civ.R. 10(D), where

the ‘writing presents an insuperable bar to relief.’” Id.

IV.   Law and Analysis

      A.     EW’s Claims Against Roizen

             1.     Tortious Interference with Contract Against Roizen

               In its tortious interference claim, EW alleges that Roizen took

actions to undermine the Licensing Agreement that existed between EW and

CCWE by “tricking [EW] into negotiating a sublicense agreement and providing

other marketing support for his Aeroscena, LLC aromatic oils company, which he

knew would create a conflict of interest and/or circumvent CCWE’s refusal to give

Aeroscena” a branding license. EW alleges that Roizen had no legal privilege for

his actions and that his actions caused CCWE to terminate the Licensing

Agreement, which caused EW to incur damages.

               “The elements of tortious interference with a contract are: (1) the

existence of a contract; (2) the wrongdoer’s knowledge of the contract; (3) the

wrongdoer’s intentional procurement of the contract’s breach; (4) lack of

justification; and (5) resulting damages.” Berardi’s Fresh Roast, Inc. v. PMD
Ents., 8th Dist. Cuyahoga No. 90822, 2008-Ohio-5470, ¶ 35, citing Fred Siegel Co.

v. Arter & Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853 (1999).

               According to the Ohio Supreme Court, “intentional procurement of

the contract’s breach,” not the breach itself, is an element of tortious interference

with contract. Fred Siegel Co. v. Arter & Hadden, 85 Ohio St.3d 171, 176, 707

N.E.2d 853 (1999). However, there is case law to support that a breach of contract

is an implied element of tortious interference with contract, because there must be

a breach of contract for a defendant to procure such a breach. See Cairelli v.

Brunner, 10th Dist. Franklin No. 18 AP 000164, 2019-Ohio-1511, ¶ 58 (“Without a

breach of contract there can be no tortious interference with contract.”); Sony Elec.

v. Grass Valley Group, 1st Dist. Hamilton Nos. C-010133 and C-010423, 2002

Ohio App. LEXIS 1304, 13 (Mar. 22, 2002) (“[A] tortious interference with a

contract requires that there be a breach of contract.”); Pannozzo v. Anthem Blue

Cross & Blue Shield, 152 Ohio App.3d 235, 2003-Ohio-1601, 787 N.E.2d 91, ¶ 19

(7th Dist.) (“for [plaintiff’s] claim of tortious interference to survive there must first

be a breach of the contract between himself and [defendant]”).              Because we

determine below that EW has failed to state a cause of action for breach of

contract, we affirm the trial court’s dismissal of its tortious interference claim.

               Further, even assuming a breach occurred, the complaint fails to

allege that Roizen intentionally procured the contract’s breach. Roizen sought to

use the Licensing Agreement between EW and CCWE to secure a sublicense for

Aeroscena. Accordingly, even construing all the allegations in EW’s favor, the
complaint indicates that Roizen would have wanted to preserve the Licensing

Agreement, not intentionally procure its breach.

            2.     Fraud against Roizen

              In its fraud claim, EW alleges that Roizen falsely represented or

concealed the truth where he had a duty to disclose that (1) he had authority to

approve EW’s pillows for sale with CCWE-approval branding; (2) that the pillows

were approved by CCWE; and (3) that he had permission from CCWE to include

Aeroscena products with EW’s marketing efforts for its own products, including at

the Las Vegas trade show in March 2017.            EW alleges it relied on Roizen’s

representations in agreeing to negotiate a sublicense with Aeroscena and share a

booth with it at the Las Vegas trade show that allegedly led to CCWE terminating

the Licensing Agreement. EW also alleges it relied on Roizen’s representations in

deciding to incur costs to market, manufacture, and sell its pillows on QVC.

               “The elements of fraud are: (1) a representation of fact (or where

there is a duty to disclose, concealment of a fact); (2) that is material to the

transaction at issue; (3) made falsely, with knowledge of its falsity or with utter

disregard and recklessness as to whether it is true or false; (4) with the intent of

misleading another into relying upon it; (5) justifiable reliance upon the

misrepresentation (or concealment) and (6) resulting injury proximately caused by

the reliance.” Mobley v. James, 8th Dist. Cuyahoga No. 108470, 2020-Ohio-380,

¶ 32, citing Cohen v. Lamko, Inc., 10 Ohio St.3d 167, 169, 462 N.E.2d 407 (1984).
              CCWE argues that EW cannot adequately allege that it relied on Dr.

Roizen’s oral statements. We agree that EW’s fraud claim fails on the element of

justifiable reliance. Before we address why EW’s claim fails for lack of justifiable

reliance, we resolve EW’s concern that discussing justifiable reliance requires us to

improperly look beyond the pleadings.

              To bolster its argument that EW could not have justifiably relied on

any oral statements regarding approval, CCWE stated that EW did not receive

written approval for the pillows. EW contends that CCWE’s statement is outside

the scope of the complaint because it contradicts EW’s allegation that it obtained

the necessary approvals for the pillows and that CCWE and Roizen reviewed and

approved samples of the pillows. We agree with EW that CCWE’s argument

regarding a lack of written approval is beyond the scope of the complaint and may

not be considered in our review of the trial court’s dismissal of the complaint.

However, we need not rely on nor consider CCWE’s statement to find that EW’s

fraud claim fails for lack of justifiable reliance. Even accepting as true that the

pillows were approved in writing, we nevertheless find that EW failed to state a

claim for fraud.

               EW also challenges CCWE’s argument that EW could not have

reasonably relied on Roizen’s misrepresentations because the Licensing

Agreement required all approvals to be in writing. EW contends that the question

of reasonableness required for a justifiable reliance determination is a fact

question beyond the scope of the complaint. We disagree. In Hoffman v. Fraser,
11th Dist. Geauga No. 2010-G-2975, 2011-Ohio-2200, the Eleventh District relied

on the written instrument attached to the complaint to affirm the trial court’s

dismissal of the plaintiff’s claim for failing to sufficiently allege justifiable reliance.

In Hoffman, a commitment for title insurance attached to the complaint stated

that there could be no justifiable reliance on the title search unless the appellant

purchased a title insurance policy, and the appellant did not purchase such a

policy. Id. at ¶ 17. The Eleventh District held that the disclaimer precluded any

claim of justifiable reliance. Id. at ¶ 17. Likewise, we reject EW’s argument that we

may not consider the issue of justifiable reliance on a motion to dismiss. As we

explain below, the Licensing Agreement’s requirement that all approvals be in

writing prevents EW from successfully alleging that it justifiably relied on Roizen’s

alleged misstatements.

                In determining whether there was justifiable reliance, one looks to

the relationship between the parties. Mussivand v. David, 45 Ohio St. 3d 314, 322,

544 N.E.2d 265 (1989).         The Licensing Agreement governs the relationship

between CCWE and EW, including CCWE’s approval of the pillows or other

licensed products. It is undisputed that Roizen is not party to the Licensing

Agreement and we find that EW has failed to allege any facts to support that

Roizen had any authority to grant approval related to the pillows or Aeroscena

sublicense. Having reviewed each alleged misrepresentation, there is no set of

facts that would show EW justifiably relied on any of the alleged

misrepresentations.
              Regarding the first alleged misrepresentation, EW cannot prove it

justifiably relied on Roizen’s alleged misstatement that he had authority to approve

EW’s pillows for sale with CCWE-approval branding. The Licensing Agreement

contains multiple provisions that require EW to obtain approval from CCWE in

writing. As a result, there is no way EW could prove it justifiably relied on Roizen’s

representation. Section 3 of the Licensing Agreement provides: “Company [EW]

shall perform all of the following duties and obligations at the discretion and

written direction of CCWE.” (Emphasis added.) Subsection 3.7 provides that EW

shall “Develop products relating to the manufacture and sale of the Licensed

Products which shall be subject to the express written approval of CCWE.”

(Emphasis added.) Similarly, subsection 3.9 provides, in part:

      CCWE retains the right to grant final, or interim when specifically
      requested, approval on art, design and editorial matters. Company
      agrees to submit to CCWE, for final approval, drafts, prototypes, and
      finished samples of all Licensed Products and any and all advertising
      promotional and packaging material related to said Licensed
      Products. CCWE will respond in writing to Company regarding
      approval, disapproval, or still under review within ten (10) business
      days after receipt of such samples.

(Emphasis added.)

              Nowhere does the Licensing Agreement state or indicate that Roizen

had authority to approve the pillows. Rather, it plainly required EW to obtain

written approval from CCWE in regards to the manufacture, marketing, and sale of

the pillows. Thus, EW cannot show that it justifiably relied on Roizen’s alleged

statement that he had authority to approve the pillows.
               Moving to the second alleged misrepresentation, EW also cannot

prove it justifiably relied on Roizen’s alleged misstatement that CCWE approved

the pillows. First, taking as true EW’s allegation that it obtained all necessary

approvals for the pillows from CCWE, Roizen’s statement that the pillows were

approved is not false and therefore cannot sustain a fraud claim. Otherwise, for

the reasons already discussed, EW cannot prove that it justifiably relied on this

alleged misstatement where the Licensing Agreement, to which Roizen was not a

party, governed the approval process and required approval in writing.

               Finally, EW also cannot prove it justifiably relied on Roizen’s alleged

misstatement that he had authority to approve the Aeroscena sublicense. EW

alleges that it reasonably believed Roizen had the authority “to act in this fashion

on behalf of CCWE” and therefore agreed to negotiate a sublicense with Aeroscena

and agreed to share space with Aeroscena at the Las Vegas trade show. However,

both the Licensing Agreement and facts alleged show to a certainty that EW cannot

prove its alleged reliance was justified.

               The Licensing Agreement prohibits EW from granting a sublicense

without CCWE’s prior written approval.           Subsection 5.4 of the Licensing

Agreement grants EW “a freely revocable, non-transferable, non-assignable, non-

exclusive limited right to use CCWE’s or CCWE’s [sic] trademarks (“Marks”) for

advertising the CCWE and CCWE [sic] name and brand consistent with CCWE’s

branding guidelines.” It further states that EW “agrees that it has no rights in the
CCWE Marks except as expressly authorized in this Agreement” and that “[a]ll

uses of the CCWE Marks must be pre-approved by CCWE.”

              Subsection 25, “Use of Name,” provides:

      Except as stated in this Agreement, [EW] shall not use the name, logo,
      likeness, trademarks, image, or other intellectual property of CCWE
      for any advertising, marketing, press release, case study,
      endorsement, or any other purposes without the specific prior
      written consent of CCWE’s Corporate Communications Executive
      Director as to each such use.

(Emphasis added.)

              It is clear from the complaint and the Licensing Agreement that

Roizen did not have approval to grant a sublicense to Aeroscena to brand itself as

CCWE-approved. Accordingly, EW could not have justifiably relied on Roizen’s

alleged approval for the sublicense or sharing a booth at the trade show.

              Further, EW alleges that Roizen and Gubanc, a Senior Director of

CCWE, initially approached EW together about EW potentially sublicensing

Aeroscena, but that EW declined because it was “further advised that CCWE would

deal with Aeroscena’s licensing separately.” Afterwards, Roizen approached EW

and advised that “CCWE had determined the Aeroscena aromatic oils would, in

fact, be sublicensed through EW after all.” As discussed, Gubanc — not Roizen —

was the only one designated with the authority to sign and in fact signed the

Licensing Agreement on behalf of CCWE; it is undisputed that Roizen is not party

to the Licensing Agreement; and, discussed below, EW has not alleged sufficient

facts to support that CCWE held Roizen out to have actual or apparent authority to
approve a sublicense. Further, EW has not alleged sufficient facts to demonstrate

that it obtained the requisite approval to grant the sublicense pursuant to the

Licensing Agreement. Accordingly, any reliance EW placed on Roizen having

authority to approve the Aeroscena sublicense was not justified.

            3.     Deceptive Trade Practices against Roizen

              In Count 3, EW purports to allege a violation of the Deceptive Trade

Practices Act (“Ohio DTPA”), codified at R.C. 4165.01 et seq. EW alleges that

Roizen violated R.C. 4165.02(A)(7) by falsely representing to EW that: (1) EW’s

pillows had CCWE-approval for marketing and sale under the Licensing

Agreement and (2) Roizen had all necessary permission from CCWE to extend

marketing support to Aeroscena.

              The Ohio DTPA provides:

      A person engages in deceptive trade practice when, in the course of
      the person’s business, vocation, or occupation, * * * the person
      represents that goods or services have sponsorship, approval,
      characteristics, ingredients, uses, benefits, or quantities that they do
      not have or that a person has a sponsorship, approval, status,
      affiliation, or connection that the person does not have.

R.C. 4165.02(A)(7).

              “The Ohio Deceptive Trade Practices Act is substantially similar to

the federal Lanham Act, and it generally regulates trademarks, unfair competition,

and false advertising.”   Dawson v. Blockbuster, Inc., 8th Dist. Cuyahoga No.

86451, 2006-Ohio-1240, ¶ 23, citing Yocono’s Restaurant, Inc. v. Yocono, 100

Ohio App.3d 11, 17, 651 N.E.2d 1347 (1994). “When adjudicating claims under the

Ohio Deceptive Trade Practices Act, Ohio courts shall apply the same analysis
applicable to claims commenced under analogous federal law.” Id. at ¶ 23, quoting

Chandler & Assoc. v. Am.’s Healthcare Alliance, 125 Ohio App.3d 572, 579, 709

N.E.2d 190 (8th Dist.1997). Thus, Ohio courts look to the analogous federal

Lanham Act when analyzing Ohio DTPA claims. Cesare v. Work, 36 Ohio App.3d

26, 28, 520 N.E.2d 586 (9th Dist.1987); Max Rack, Inc. v. Core Health & Fitness,

LLC, S.D.Ohio No. 2:16-cv-01015, 2019 U.S. Dist. LEXIS 158008, 21 (Sept. 17,

2019) (dismissing Ohio DTPA claim under R.C. 4165.02(A)(7) based on Lanham

Act analysis). We therefore look to the Lanham Act for guidance regarding EW’s

Ohio DTPA claim. 15 U.S.C. 1125, et seq.

              The purpose of the Lanham Act, and by comparison the Ohio DTPA,

“is exclusively to protect the interests of a purely commercial class against

unscrupulous commercial conduct.” Michelson v. Volkswagen Aktiengesellschaft,

2018-Ohio-1303, 99 N.E.3d 475, ¶ 16 (8th Dist.), citing Dawson v. Blockbuster,

Inc., 8th Dist. Cuyahoga No. 86451, 2006-Ohio-1240, ¶ 24. Similarly, the Ohio

DTPA requires a false representation be made while the person is engaged in some

type of “business, vocation, or occupation.” R.C. 4165.02. See also Gascho v.

Global Fitness Holdings, LLC, 863 F.Supp.2d 677, 698 (S.D. Ohio 2012). The

Lanham Act requires a plaintiff to establish five elements:

      (1) the defendant has made false or misleading statements of fact
      concerning his own product or another’s; (2) the statement actually
      deceives or tends to deceive a substantial portion of the intended
      audience; (3) the statement is material in that it will likely influence
      the deceived consumer’s purchasing decisions; (4) the advertisements
      were introduced into interstate commerce; and (5) there is some
      causal link between the challenged statements and harm to the
      plaintiff.

Max Rack, Inc. at 18, citing Grubbs v. Sheakley Group Inc., 807 F.3d 785, 798 (6th

Cir.2015).

                “Where an advertisement communicates a ‘literally false’ message to

consumers, courts will presume that the consumers were deceived.” Id., quoting

Wysong Corp. v. APN, Inc., 889 F.3d 267, 270-71 (6th Cir. 2018). Max Rack at 18.

                Further, “[p]laintiffs seeking damages for false advertising must

‘present evidence that a “significant portion” of the consumer population was

deceived.’” Grubbs at 802, quoting Herman Miller, Inc. v. Palazzetti Imports &

Exports, Inc., 270 F.3d 298, 323 (6th Cir. 2001), quoting Am. Council of Certified

Podiatric Physicians & Surgeons v. Am. Bd. of Podiatric Surgery, Inc., 185 F.3d

606, 616 (6th Cir.1999).

                We find that even if Roizen’s alleged statements were false, EW has

not stated a claim for relief under the Ohio DTPA.

                    a)     Misrepresentation regarding the pillows

                EW alleges that Roizen falsely stated that CCWE had approved the

pillows. As a result, EW displayed the pillows in a CCWE-branded booth at a trade

show with Aeroscena oils; CCWE terminated the Licensing Agreement; and EW

lost sales and development costs. We find that EW’s claim fails under the Lanham

Act analysis.

                At the motion to dismiss stage, we accept the plaintiff’s allegations

as true. Byrd v. Faber, 57 Ohio St.3d 56, 60, 565 N.E.2d 584 (1991) (“Under Ohio
law, when a party files a motion to dismiss for failure to state a claim, all factual

allegations of the complaint must be taken as true and all reasonable inferences

must be drawn in favor of the nonmoving party.”). For purposes of our review, we

therefore accept as true that Roizen’s statement about the pillows was false. Even

accepting that the statement was false, EW cannot show under these facts that

Roizen’s statement caused or tended to cause EW to be deceived. EW cannot show

it was actually deceived by Roizen’s statement where Roizen did not have authority

under the governing Licensing Agreement to approve the pillows. Also, we find

any connection between Roizen’s statement and interstate commerce too tenuous

to sustain a claim under these facts.      To the extent the pillows were falsely

advertised to consumers at the trade show, such advertisement was not the result

of Roizen’s statement to EW, but EW’s decision to display the pillows at the trade

show without getting CCWE’s approval pursuant to the Licensing Agreement.

                   b)   Misrepresentation regarding Roizen’s authority
                   to approve the Aeroscena sublicense

              EW’s allegation that Roizen falsely represented he had the necessary

permission from CCWE to extend marketing support to Aeroscena fails because

the statement was not disseminated to any consumers, let alone a significant

portion of consumers. Grubbs, 807 F.3d at 802. Further, there is no indication

that the consumer population was deceived by Roizen’s statement regarding his

authority to approve the sublicense. Id. Thus, EW cannot sustain a claim under

the Ohio DTPA based on that statement.
              Accordingly, we find that EW has failed to state a claim under the

Ohio DTPA and affirm the trial court’s dismissal of Count 3.

      B.     EW’s Claims Against CCWE

             1.    Breach of Contract Against CCWE

              In its breach of contract claim, EW alleges that CCWE breached the

Licensing Agreement and the implied duty of good faith when it terminated the

agreement after the trade show. EW also alleges that CCWE, through Roizen’s

actions, breached the Licensing Agreement by violating subsection 3.17, which

prohibits CCWE from employing “deceptive, misleading or unethical practices

related to the advertising, marketing sales or licensing of the Product.”

              We find that EW can prove no set of facts entitled it to recover and

affirm the trial court’s decision to dismiss EW’s breach of contract claim against

CCWE.

                   a)   The Licensing            Agreement        is   Valid   and
                   Enforceable

              CCWE argues that EW’s breach of contract claim fails because

CCWE did not breach the contract and, even if it did, EW has not alleged that it

can recover damages under the contract. The threshold issue at the heart of these

arguments is whether the termination and limitation of liability clauses in the

Licensing Agreement are valid and enforceable. We find that they are.

              “[C]ontracts entered into freely and fairly are enforceable.” Alotech

Ltd. L.L.C. v. Barnes, 8th Dist. Cuyahoga No. 104389, 2017-Ohio-5569, ¶ 14, citing

Cincinnati City School Dist. Bd. of Edn. v. Conners, 132 Ohio St. 3d 468, 2012-
Ohio-2447, 974 N.E.2d 78, ¶ 15. “Further, ‘[t]he freedom to contract is a deep-

seated right that is given deference by the courts.’” Id. However, the right is not

absolute and “[a] court may refuse to enforce a contract when it violates public

policy.” Id. at ¶ 15, quoting DeVito v. Autos Direct Online, Inc., 2015-Ohio-3336,

37 N.E.3d 194, ¶ 37 (8th Dist.).

               As the Supreme Court has explained:

      “‘Public policy’ is the community common sense and common
      conscience extended and applied throughout the state to matters of
      public morals, public health, public safety, public welfare, and the
      like.’ ‘Again, public policy is that principle of law which holds that no
      one can lawfully do that which has a tendency to be injurious to the
      public or against the public good.’”

Id., quoting Conners at ¶ 17, quoting Pittsburgh, Cincinnati, Chicago & St. Louis

Ry. Co. v. Kinney, 95 Ohio St. 64, 64, 115 N.E. 505 (1916); Eagle v. Fred Martin

Motor Co., 157 Ohio App.3d 150, 2004-Ohio-829, 809 N.E.2d 1161, ¶ 64 (9th

Dist.); Ohio Jurisprudence 3d, Contracts, Section 94, at 528 (1980).

               Accordingly, “contracts which bring about results which the law

seeks to prevent are unenforceable as against public policy.” Alotech at ¶ 15,

quoting Conners at ¶ 17. The legislative branch is the arbiter of public policy, but it

is the courts who must determine when the public-policy exception to freedom of

contract should be recognized. Id. at ¶ 16, citing Conners at ¶ 17. We, therefore,

must determine whether enforcing the terms of the Licensing Agreement

“accomplishes a result that the state has sought to prevent or whether it

accomplishes something that the state seeks to facilitate.” Id.
              EW argues that the termination and limitation of liability clauses

violate public policy and that EW can therefore sustain a breach of contract claim

by alleging that CCWE terminated the agreement in bad faith. We disagree.

Although the contract overall is extremely favorable to CCWE, it is not against

public policy. CCWE and Balance Product Development, Inc. freely entered into

the Licensing Agreement. EW was competent enough to read and understand the

terms of the Licensing Agreement and accepted the assignment without

negotiating any new terms.       Thus, we find that the termination clause and

limitation of liability clause are not against public policy and are, therefore,

enforceable under freedom of contract principles.

                         i. The Termination Clause is Enforceable

              Section 12 of the Licensing Agreement is titled “Term and

Termination.” It states, in pertinent part:

      Either party may terminate this Agreement for its convenience at any
      time upon one hundred twenty days written notice to the other party.
      Upon termination of this Agreement for any reason, Company agrees
      to cease all use of the CCWE Marks within thirty (30) days after such
      termination and shall cease offering Programs to third parties.

              The parties were free to include a mutual provision allowing for

termination at the convenience of the party exercising the right. EW did not

renegotiate the termination clause when it accepted the assignment of the

Licensing Agreement. As a matter of law, the provision does not violate public

policy and is therefore valid and enforceable. CCWE plainly had the right to

terminate the Licensing Agreement at its convenience, as did EW.
                           ii. Limitation of Liability Clause is Enforceable

                   EW argues that limitation of liability clauses are not enforceable

under Ohio law if they excuse willful, wanton, or reckless behavior, or offend

public policy. We find that the limitation of liability clause does not offend public

policy.

                Section 10 of the Licensing Agreement is titled “Limitation of

Liability.” It states, in all capital letters:

       Other than company’s indemnification obligation under this
       agreement, neither party shall have any liability in regard to
       consequential, exemplary, special, incidental or punitive damages,
       even if it has been advised of the possibility of such damages. Except
       for company’s indemnification obligation under this agreement, in no
       event shall either party’s total liabiltiy in connection with or under
       this agreement (whether under the theories of breach of contract,
       tort, negligence, strict liability, or any other theory of law) exceed the
       fees payable to CCWE for the license and sale of products during the
       first 12 months of this agreement.

(Emphasis added.)

                EW relies on Berjian v. Ohio Bell Tel. Co., 54 Ohio St.2d 147, 375

N.E.2d 410 (1978), and Purizer Corp. v. Battelle Mem. Inst., 2002 U.S. Dist.

LEXIS 138 (N.D. Ill. 2002), to argue that the limitation of liability clause violates

public policy and is therefore unenforceable, but neither case is applicable here.

                Berjian determined that a limitation clause by which a public utility

was exempt from damages resulting from its own negligence was valid and

enforceable where the utility did not have a legal or public duty to provide a

specific service to its customers and it did not violate any other public policy. The

court further held that, absent a showing of a duty owed by the defendant and
willful or wanton misconduct by the defendant, the limitation clause was

enforceable. Berjian at 158. Unlike Berjian, the limitation clause does not exempt

CCWE from its own negligence; it merely sets a limit on damages recoverable by

either party. Further, the instant case does not involve any public or legal duty that

would render the limitation of liability clause unenforceable under Berjian.

                Purizer similarly held that a limitation of liability clause was

ineffective because the plaintiff’s fraud claim contained an allegation of willful and

reckless misconduct. Purizer at 14. However, the limitation clause in Purizer, as

in Berjian, completely excused the defendant from any liability for damages in

connection with the agreement. Here, the limitation clause does not excuse CCWE

or EW from willful, wanton, or reckless behavior or offend public policy. It merely

limits the damages either party can recover. EW’s allegations regarding willful and

wanton misconduct are conclusory and without factual support. We therefore find

the limitation of liability clause in the Licensing Agreement to be valid and

enforceable.

               Having determined that the Licensing Agreement is valid and

enforceable, we next consider whether EW has stated a claim for breach of contract

upon which it can obtain relief.

                   b)     Breach

               “A cause of action for breach of contract requires the claimant to

establish the existence of a contract, the failure without legal excuse of the other

party to perform when performance is due, and damages or loss resulting from the
breach.” Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15,

97 N.E.3d 458, ¶ 41.

              EW argues that to survive a motion to dismiss, it need not plead a

claim for breach of contract with specificity. Nonetheless, we must dismiss a claim

if, as here, it ‘“appear[s] beyond doubt from the complaint that the plaintiff can

prove no set of facts entitling [it] to recover.”’ Cord v. Victory Solutions, LLC, 8th

Dist. Cuyahoga No. 106006, 2018-Ohio-590, ¶ 11, quoting Chinese Merchants

Assn. v. Chin, 159 Ohio App.3d 292, 2004-Ohio-6424, 823 N.E.2d 900, ¶ 4 (8th

Dist.).

              EW has alleged that CCWE breached by wrongfully terminating the

Licensing Agreement and by violating subsubsection 3.17, which prohibits

unethical conduct related to the licensing or marketing of the product, through

Roizen’s actions. CCWE argues that EW’s breach of contract claim fails on its face

because the contract allowed either party to terminate “for its convenience at any

time” and claims it did not breach subsection 3.17.

              EW argues the following in response: (1) CCWE lost the right to

terminate for convenience because Roizen caused a breach of the contract by

violating subsection 3.17 of the Licensing Agreement; (2) CCWE is improperly

relying on the termination and limitation of liability clauses as affirmative defenses

that cannot be proved based on the pleadings and may not be considered on a

motion to dismiss unless the allegations in the complaint “leave no doubt that the

asserted avoidance is unavoidable”; and (3) CCWE’s bad faith prohibits it from
relying on the termination clause to avoid a breach of contract claim. We address

each of these arguments in turn.

                         i. Subsection 3.17

               First, the complaint and Licensing Agreement demonstrate that EW

cannot prove Roizen or CCWE breached subsection 3.17 of the Licensing

Agreement. That section states as follows, in pertinent part:

        Each party agrees that it will not employ in any manner any deceptive,
        misleading or unethical practices related to the advertising,
        marketing, sales or licensing of the Product(s).

               One of the “whereas” clauses of the Licensing Agreements provides

that:

        CCWE desires to enter into an arrangement with [EW] for the
        production and sale of Products, defined collectively and individually
        as “electric and non-electric consumer durable/hard goods along with
        any directly- related consumable components (e.g. razor and razor
        blades) and directly-related software/mobile apps (e.g. Nest
        thermostat and related mobile app and website), which must also
        further the charitable mission of CCF[.]

               Thus, the definition of “Product” in the Licensing Agreement

contemplates that CCWE and EW were contracting for the production and sale of

any number of products. Roizen’s alleged violation of subsection 3.17 related to

Aeroscena’s essential oils, not to any product produced by EW. Roizen’s alleged

request for a sublicense for his company, Aeroscena, under false pretense or

without authority, is not a deceptive, misleading or unethical practice related to the

advertising, marketing, sales, or licensing of a product as defined in the Licensing

Agreement. Further, EW also alleges that it obtained all the necessary approvals to
license its pillows. Roizen’s alleged statement that EW had the necessary approval

for the licensing could not have been a deceptive, misleading, or unethical practice

if the statement was true, as EW alleged. We conclude, based on the complaint

and contract, that Roizen did not breach subsection 3.17.

              The allegation that CCWE violated subsection 3.17 before

terminating the Licensing Agreement is based exclusively on Roizen’s alleged

actions. However, discussed more thoroughly below, the complaint fails to allege

any factual support for its allegation that Roizen had actual or apparent authority

to act on CCWE’s behalf. Thus, according to the complaint and terms of the

contract, EW cannot prove CCWE breached subsection 3.17.

                       ii. First Material Breach

              EW next argues that CCWE did not have the right to terminate the

Licensing Agreement at its convenience because it alleged Roizen or CCWE

breached subsection 3.17 before CCWE terminated the agreement. This argument

fails because, having considered the complaint and contract, Roizen did not breach

subsection 3.17.

              EW’s argument misconstrues the principle of a first material breach.

EW asserts that because it alleged Roizen breached subsection 3.17 before CCWE

terminated the agreement, Roizen’s breach precluded CCWE from exercising its

right to terminate for convenience. EW’s theory misses the mark. Even if Roizen

or CCWE breached subsection 3.17 and the breach was material, such a first

material breach might excuse EW from further performance, but would not
prohibit CCWE from exercising its contractual termination rights. Lease Auto

Corp. Div. of Milt Miller Pontiac v. Starr, 8th Dist. Cuyahoga No. 35460, 1977

Ohio App. LEXIS 7491, 12 (Feb. 24, 1977) (holding that a first material breach can

excuse the non-breaching party from further performance).

                       iii. Termination and Limitation of Liability Clauses as
                           Avoidable Defenses

              EW next argues that the termination and limitation of liability

clauses are avoidances that may only be used as the basis for dismissal under

Civ.R. 12(B)(6) if the allegations of the complaint leave no doubt that the asserted

avoidance is unavoidable. EW is correct on this point of law. See Pierce v.

Woyma, 8th Dist. Cuyahoga No. 94037, 2010-Ohio-5590, ¶ 38 (“An affirmative

defense, such as statutory immunity, may be asserted through a motion to dismiss

so long as the basis for the defense is apparent from the face of the complaint.”).

However, we find that we may properly consider these provisions of the Licensing

Agreement at the motion to dismiss stage and that both provisions present

unavoidable defenses that require EW’s breach of contract claim against CCWE be

dismissed.

              When a contract is attached to a complaint, Civ.R. 10(C) applies,

which states in part, “A copy of any written instrument attached to a pleading is a

part of the pleading for all purposes.” Thus, to determine whether the allegations

in a complaint are legally sufficient to state a claim, we look both to the complaint

and “the copy of a written instrument upon which a claim is predicated[.]”

Fairview Realty Investors v. Seaair, Inc., 8th Dist. Cuyahoga No. 81296, 2002-
Ohio-6819, ¶ 8. We should grant a motion to dismiss if the writing attached to the

complaint is “clear and unambiguous” and ‘“presents an insuperable bar to relief.”’

Id., quoting Slife v. Kundtz Properties, Inc., 40 Ohio App.2d 179, 184, 318 N.E.2d

557 (8th Dist.1974). Although we consider the facts in the light most favorable to

EW, we “need not presume the truth of ‘unsupported conclusions.’” Abdallah v.

Doctor’s Assocs., 8th Dist. Cuyahoga No. 89157, 2007-Ohio-6065, ¶ 2, quoting

Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193, 532 N.E.2d 753 (1988).

               The Licensing Agreement was attached to the complaint and

therefore is considered part of the pleading. Having found that the termination

and limitation of liability provisions therein are valid and enforceable provisions,

they are properly considered on a motion to dismiss. We next discuss our finding

that the termination and limitation of liability clauses are unambiguous and

present insuperable bars to relief.

               There is nothing in the complaint or the Licensing Agreement to

suggest that CCWE did not have the right to terminate the agreement at the time

and in the manner alleged. Section 12 of the Licensing Agreement provides that

CCWE could terminate the Agreement at any time for any reason: “Either party

may terminate this Agreement for its convenience at any time upon one hundred

twenty days written notice to the other party.” The language of the clause is clear

and unambiguous.      Thus, even though EW alleges that CCWE breached the

Licensing Agreement by terminating it in bad faith to shield Roizen, such an
allegation would fail to establish a breach under Section 12 of the Licensing

Agreement because CCWE was permitted to terminate “for its convenience.”

               Moving to the limitation of liability provision, Section 10 of the

Licensing Agreement limits EW’s recovery under the Licensing Agreement to the

“fees payable to CCWE for the license and sale of products during the first 12

months of this agreement.” The Licensing Agreement provides that its effective

date was June 17, 2015. Thus, based on the clear and unambiguous terms of the

Licensing Agreement, EW’s recovery under the Licensing Agreement is limited to

the fees payable to CCWE for the license and sale of products between June 17,

2015, to June 17, 2016. Although EW’s complaint alleges that CCWE’s “bad faith

and material breaches” caused EW to suffer damages in excess of $25,000, it also

alleges that the test-marketing launch on QVC for the pillows was June 21, 2017.

Because June 21, 2017, is more than 12 months after June 17, 2015, the facts as

alleged do not establish the damages element of a breach of contract.               The

limitation of liability provision therefore also presents an insuperable bar to relief.

               Because the termination and limitation of liability clauses both

present insuperable bars to relief, they are properly considered on a motion to

dismiss. See Keenan v. Adecco Emp. Servs., 3d Dist. Allen No. 1-06-10, 2006-

Ohio-3633, ¶ 16 (affirming the trial court’s dismissal of the plaintiff’s claim

pursuant to Civ.R. 12(B)(6) where the claim asserted in the complaint contradicted

the contract underlying the claim); Beard v. N.Y. Life Ins. & Annuity Corp., 10th

Dist. Franklin No. 12AP-977, 2013-Ohio-3700, ¶ 28 (affirming trial court’s
dismissal of complaint because the claim expressly contradicted the terms of the

writing attached to the complaint).

                       iv. Bad Faith

               EW also argues that CCWE did not have the right to exercise its

termination rights because it did so in bad faith.      EW alleges that CCWE

terminated the Licensing Agreement two days after the Las Vegas trade show

where EW shared a CCWE-branded booth with Aeroscena. Based on the timing of

the termination, EW claims CCWE terminated the Licensing Agreement “to shield

Roizen from the consequences of his misconduct, and to thrust the burden of

Roizen’s misconduct onto EW.” EW contends that it sufficiently pled a breach of

the implied duty of good faith and fair dealing because it alleged that CCWE had

ulterior motives for terminating the Licensing Agreement.

               The “the implied duty of good faith and fair dealing does not mean

that parties are forbidden from exercising the rights and duties defined in a

contract[.]”   B&H Res., L.L.C. v. 28925 Lorain Inc., 8th Dist. Cuyahoga No.

105323, 2017-Ohio-7248, ¶ 12. Accordingly, we do not find that EW’s allegation

that CCWE terminated the contract in bad faith saves its claim for breach of

contract. See Duer v. Bd. of Edn., 8th Dist. Cuyahoga No. 45245, 1983 Ohio App.

LEXIS 14762, 4 (Mar. 24, 1983) (even if the superintendent acted in bad faith, the

teacher failed to state a claim for breach of contract because the superintendent

had “complete discretion in the assignment of teachers”); Ed Schory & Sons v.

Francis, 75 Ohio St.3d 433, 443, 662 N.E.2d 1074 (1996), quoting Kham & Nate’s
Shoes No. 2, Inc. v. First Bank of Whiting, 908 F.2d 1351, 1357, 1990 U.S. App.

LEXIS 12831 (7th Cir.1990) (bank’s decision to enforce parties’ agreements as

written was not an act of bad faith; “‘[a]lthough courts often refer to the obligation

of good faith that exists in every contractual relation, * * * this is not an invitation

to the court to decide whether one party ought to have exercised privileges

expressly reserved in the document’”).

                 In support of its argument, EW relies on two cases that, apart from

not being binding authority, are distinguishable from the instant case: Florence

Urgent Care v. HealthSpan, Inc., 445 F.Supp.2d 871 (S.D.Ohio 2006), and

Littlejohn v. Parrish, 163 Ohio App.3d 456, 2005-Ohio-4850, 839 N.E.2d 49 (1st

Dist.).

                 Florence held that the employer-defendant was not entitled to

summary judgment on a breach of contract claim where it terminated employees

under a “without cause” clause. Florence at 879-880. The court reasoned that a

jury might find the employer breached the implied duty of good faith and fair

dealing because the employer admittedly gave false reasons for the termination

and therefore, the termination might have violated public policy and constituted a

breach of good faith. Id. Florence, however, involved allegations of discrimination

related to the termination, which, unlike CCWE’s alleged actions, would violate

public policy.

                 Littlejohn denied summary judgment in a mortgagee’s lawsuit

alleging the mortgagor unreasonably withheld consent to prepay a mortgage note
where the note required the mortgagor’s approval to do so. The court held that the

implied duty of good faith applied to the contract and that summary judgment was

not appropriate because whether the mortgagor’s denial was reasonable was a fact

issue. Littlejohn at ¶ 31. It further reasoned that if the denial was unreasonable,

such denial could amount to a restraint on the alienation of property. Id.

                EW argues that Florence and Littlejohn support its argument that

CCWE breached the implied duty of good faith because it alleged an ulterior

motive for terminating the Licensing Agreement. But unlike here, Florence and

Littlejohn did not merely involve ulterior motives. Rather, both involved potential

violations of public policy underlying the contract termination. As discussed, we

do not believe the termination clause violates public policy and none of EW’s

allegations or arguments demonstrate that CCWE violated public policy in

terminating the agreement. We decline to hold that CCWE’s motive in terminating

could result in a breach of bad faith where CCWE acted under a broad termination

clause; such a holding would encroach upon the well-settled doctrine of freedom of

contract.

              EW’s position seems to be that CCWE was not free to terminate the

contract for convenience because bad faith motivated the termination.         That

proposition, however, would result in a construction of the termination clause that

is contrary to its plain meaning. It seems that EW would have us modify the plain

wording of the termination clause to require that termination be restricted to

instances supported by a showing of good cause. There is no reason to inquire into
CCWE’s motive to terminate the contract because the parties agreed to a mutual

termination clause that, as we determined, does not violate public policy and is

therefore valid and enforceable. Thus, the issue of good faith regarding CCWE’s

termination is immaterial because the Licensing Agreement, a valid and

enforceable contract, allows for termination for either party’s convenience.

               Moreover, even if CCWE breached the contract, EW’s claim fails for

lack of damages. On the face of the complaint, EW did not suffer any damages that

fall within the liability limitation clause of the Licensing Agreement.

                    c)    Contract Damages

               As discussed, the Licensing Agreement limits EW’s damages against

CCWE to “the fees payable to CCWE for the license and sale of products during the

first 12 months of this agreement.” The Licensing Agreement was signed on June

17, 2015. Thus, CCWE’s damages are limited to “the fees payable to CCWE for the

license and sale of products” from June 17, 2015, to June 17, 2016.

               Pursuant to the Royalty Schedule set forth in Exhibit C of the

Licensing Agreement, the fees payable to CCWE are a royalty based on the “gross

sales price of the Product that are collected and paid to [EW] from the sale of

Licensed Products less any trade or quantity discounts, warehouse allowances, and

sales tax and other authorized taxes (if any) and CCWE approved returns.”

               The complaint alleges that EW “incurred significant expense in

manufacturing, marketing, obtaining necessary approvals for, and making ready to

sell” the pillows between 2015 and 2016, including the QVC launch scheduled for
June 21, 2017. It does not allege that any fees payable to CCWE were incurred

before June 17, 2016. On the face of the complaint and contract, EW is precluded

from recovering from CCWE anything other than the royalties owed to CCWE for

pillow sales between June 17, 2015 and June 17, 2016. According to the complaint,

there were no sales until long after that time in June 2017.

              EW further alleges that “CCWE specifically advised Enduring

Wellness that it had included royalty estimates for the 4th quarter of 2016 and 2017

for Enduring Wellness’s approval branded pillow sales in its budget.” The fourth

quarter of 2016 would have started around October 1, 2016 — more than three

months after the twelve-month liability limitation period set forth in the Licensing

Agreement had ended. In addition, even presuming that EW sold pillows at the

trade show in Las Vegas in March 2017, those sales are also beyond the contractual

limitation period.

              Accordingly, presuming all factual allegations of the complaint as

true and making all reasonable inferences in favor of the moving party, there is no

set of facts consistent with EW’s complaint, which would allow EW to recover

damages from CCWE. Accordingly, we affirm the trial court’s dismissal of Count 4

of the complaint.

             2.      Apparent Authority/Agency by Estoppel against CCWE

              In its apparent authority/agency by estoppel claim, EW alleges that

Roizen acted with actual or apparent authority of CCWE by “administering the

Licensing Agreement and latching onto Enduring Wellness’s marketing efforts on
behalf of Aeroscena.” It alleged, in conclusory fashion, that CCWE held out Roizen

as having such authority and that EW in good faith believed Roizen possessed such

authority.   EW further alleged that Roizen’s conduct damaged EW.                 EW

alternatively requested that CCWE be estopped from terminating the Licensing

Agreement given its actions in holding out Roizen to have had the authority to act

as he did.

                   “In order to establish apparent agency, the evidence must show

that the principal held the agent out to the public as possessing sufficient authority

to act on his behalf and that the person dealing with the agent knew these facts,

and acting in good faith had reason to believe that the agent possessed the

necessary authority.” Ohio State Bar Assn. v. Martin, 118 Ohio St.3d 119, 2008-

Ohio-1809, 886 N.E.2d 827, ¶ 41, quoting Master Consol. Corp. v. BancOhio Natl.

Bank, 61 Ohio St.3d 570, 575 N.E.2d 817 (1991), syllabus. “Under an apparent-

authority analysis, an agent’s authority is determined by the acts of the principal

rather than by the acts of the agent. The principal is responsible for the agent’s

acts only when the principal has clothed the agent with apparent authority and not

when the agent’s own conduct has created the apparent authority.” Id., quoting

Master Consol. at 576-577. “The assurances of one who assumes to act as an agent

of his authority to bind another are not, standing alone, sufficient to prove his

agency. The putative agent cannot create apparent agency alone.” Koos v. Storms,

8th Dist. Cuyahoga No. 84260, 2004-Ohio-6020, ¶ 38, quoting Info. Leasing
Corp. v. Chambers, 152 Ohio App.3d 715, 740, 2003-Ohio-2670, 789 N.E.2d 1155

(1st Dist.).

               Beyond Roizen’s status as Chief Wellness Officer and assertions of

his own authority, the complaint fails to state any facts to support EW’s conclusory

allegation that CCWE clothed Roizen with apparent authority. The Licensing

Agreement itself does not give actual authority to Roizen for any of his alleged acts.

Rather, the Licensing Agreement specifically required written approval from

CCWE and does not mention Roizen or reference his title of Chief Wellness Officer.

Further, the complaint tells us that EW was initially advised that CCWE would not

approve a sublicense of Aeroscena through EW. A year later, Roizen advised that

CCWE had changed its mind and that it would allow EW to sublicense Aeroscena.

In light of the Licensing Agreement and CCWE’s initial refusal to grant the

sublicense, EW cannot prove that, acting in good faith, it had reason to believe that

Roizen had actual or apparent authority from CCWE to approve EW’s pillows or

the Aeroscena sublicense. Thus, EW cannot prove that CCWE is responsible for

any of Roizen’s allegedly improper acts.

                    We further note that because EW failed to state a claim against

Roizen in his personal capacity, there is no liability for CCWE to assume. See

Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 20 (“If

there is no liability assigned to the agent, it logically follows that there can be no

liability imposed upon the principal for the agent’s actions.”).

                    We affirm the trial court’s dismissal of EW’s Count 5.
      It is ordered that appellees recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.



MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
