[Cite as Huber v. Inpatient Med. Servs., Inc., 2018-Ohio-4686.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

MICHAEL N. HUBER, M.D.                                      C.A. No.   28887

        Appellant

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
INPATIENT MEDICAL SERVICES, INC.,                           COURT OF COMMON PLEAS
et al.                                                      COUNTY OF SUMMIT, OHIO
                                                            CASE No.   CV-2016-07-3169
        Appellees

                                 DECISION AND JOURNAL ENTRY

Dated: November 21, 2018



        CALLAHAN, Judge.

        {¶1}     Appellant, Dr. Michael Huber, appeals a judgment of the Summit County Court

of Common Pleas that dismissed his complaint. This Court affirms in part and reverses in part.

                                                       I.

        {¶2}     In 2014, Dr. Michael Huber and his wife, Kristen Huber, filed a complaint against

Inpatient Medical Services, Inc. (“IMS”) and IMS Holdings, Inc., alleging various claims in

connection with the termination of Dr. Huber’s employment.                IMS and IMS Holdings

counterclaimed, alleging a breach of loyalty and fiduciary duty, conversion, unjust enrichment,

and negligent and intentional misrepresentation arising out of Dr. Huber’s employment.

Between March 22, 2016, and May 24, 2016, the Hubers filed a series of notices that purported

to voluntarily dismiss their claims under Civ.R. 41(A)(1)(a). Trial commenced on IMS and IMS

Holdings’ counterclaims only, resulting in a verdict in favor of the Hubers.
                                                2


       {¶3}    Shortly before the trial began, the Hubers filed a second case that reasserted four

of their original claims. The Hubers later filed an amended complaint that included three

additional defendants and asserted additional claims for breach of fiduciary duties and

constructive discharge.    The named defendants—IMS, IMS Holdings, IMS Intermediate

Holdings, Sverica International Investment Fund III, L.P., and Sverica Capital Management LLC

(collectively, “the IMS Defendants”)—moved to dismiss the complaint, or, in the alternative, for

summary judgment, alleging that the Hubers’ previously filed claims were barred by res judicata

and that the new claims were filed in the improper venue according to a forum selection clause.

The trial court considered the motion as a motion for summary judgment and dismissed all of

Dr. Huber’s claims.1 Dr. Huber appealed, raising four assignments of error.

                                                II.

                                  STANDARD OF REVIEW

       {¶4}    This Court reviews an order granting summary judgment de novo. Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Under Civ.R. 56(C), “[s]ummary judgment

will be granted only when there remains no genuine issue of material fact and, when construing

the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude

that the moving party is entitled to judgment as a matter of law.” Byrd v. Smith, 110 Ohio St.3d

24, 2006-Ohio-3455, ¶ 10. The substantive law underlying the claims provides the framework

for reviewing motions for summary judgment, both with respect to whether there are genuine

issues of material fact and whether the moving party is entitled to judgment as a matter of law.




       1
         Mrs. Huber notified the trial court of her intention to “withdraw[]” her claims in the
Hubers’ response to the IMS Defendants’ motion to dismiss.
                                                 3


See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Burkes v. Stidham, 107 Ohio

App.3d 363, 371 (8th Dist.1995).

                              ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN
       FAVOR OF APPELLEES UNDER THE DOCTRINE OF RES JUDICATA.

                              ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN
       FAVOR OF APPELLEES UNDER THE DOCTRINE OF RES JUDICATA ON
       CLAIMS WHICH DID NOT ARISE UNTIL AFTER THE PLEADINGS IN
       THE RELATED CASE WERE FILED.

       {¶5}    As an initial matter, this Court notes that Dr. Huber’s brief does not comply with

App.R. 16(A), App.R. 12(A)(2), and Loc.R. 7(B) and (F), which require that the appellant’s brief

contain a statement of the assignments of error. App.R. 16(A)(3); Loc.R. 7(B)(3). The appellant

must then separately argue each assignment of error, including supporting authority and citations

to the record. App.R. 16(A)(7); Loc.R. 7(B)(7). This Court may disregard assignments of error

if the appellant fails to argue them separately in the brief. Ohio Edison Co. v. Williams, 9th Dist.

Summit No. 23530, 2007-Ohio-5028, ¶ 10; see also App.R. 12(A)(2).

       {¶6}    Dr. Huber listed four assignments of error at the beginning of his appellate brief.

In the argument portion of his brief, however, he failed to identify and separately discuss each

assignment of error. See App.R. 12(A)(2); App.R. 16(A)(7); Loc.R. 7(B)(7); Village of Boston

Hts. v. Brewer, 9th Dist. Summit No. 28216, 2017-Ohio-7042, ¶ 5. Dr. Huber did provide some

headings that structure his argument to a degree, but his brief consists mostly of intertwined

arguments.

       {¶7}    Notwithstanding Dr. Huber’s failure to comply with the requirements of these

rules, this Court will address his arguments to the extent that they relate to the assignments of
                                                  4


error set forth at the beginning of his brief and are identified by the headings that he has

provided. See Hall v. Silver, 9th Dist. Summit No. 28798, 2018-Ohio-1706, ¶ 10-12.

          {¶8}   Dr. Huber’s first and second assignments of error and the first portion of his

argument maintain that the trial court erred by granting summary judgment to the IMS

Defendants and dismissing his claims on the basis of res judicata.

          {¶9}   Under the doctrine of res judicata, “[a] valid, final judgment rendered upon the

merits bars all subsequent actions based upon any claim arising out of the transaction or

occurrence that was the subject matter of the previous action.” Grava v. Parkman Twp., 73 Ohio

St.3d 379 (1995), syllabus. Res judicata incorporates the concepts of both claim preclusion and

issue preclusion. Id. at 381. “With regard to claim preclusion, a final judgment or decree

rendered on the merits by a court of competent jurisdiction is a complete bar to any subsequent

action on the same claim between the same parties or those in privity with them.” Brooks v.

Kelly, 144 Ohio St.3d 322, 2015-Ohio-2805, ¶ 7, citing Grava at 381. In addition, “an existing

final judgment or decree between the parties is conclusive as to all claims that were or might

have been litigated in a first lawsuit.” Id. In both situations, the existence of a final judgment is a

prerequisite to the application of res judicata. “[W]hen a court declines to consider an issue—in

effect rendering no judgment at all on the merits—there has not been a final judgment on the

merits for purposes of res judicata.” FOP v. Akron, 9th Dist. Summit No. 23668, 2007-Ohio-

7033, ¶ 19, citing State ex rel. Kroger Co. v. Indus. Comm. of Ohio, 80 Ohio St.3d 649, 652

(1998).

          {¶10} Civ.R. 41(A)(1)(a) provides that “a plaintiff, without order of the court, may

dismiss all claims asserted by that plaintiff against a defendant by * * * filing a notice of

dismissal at any time before the commencement of trial * * * [.]”                 (Emphasis added.)
                                                 5


Recognizing that this language is clear and unambiguous, the Ohio Supreme Court has

concluded that a voluntary dismissal under Civ.R. 41(A)(1)(a) can only operate to dismiss all

claims that a plaintiff has pending against a defendant. Pattison v. W.W. Grainger, Inc., 120

Ohio St.3d 142, 2008-Ohio-5276, ¶ 18. “[Civ.R. 41(A)(1)(a)] does not allow for the dismissal of

a portion of the claims against a certain defendant” because it “applies to discrete parties, not

discrete causes of action.” (Emphasis in original.) Id. “[B]ecause Rule 41(A)(1) does not

permit a party to voluntarily dismiss anything less than all of its claims against any one party[,]”

any attempt to do so is a nullity.      Perez Bar & Grill v. Schneider, 9th Dist. Lorain No.

09CA009573, 2010-Ohio-1352, ¶ 7, citing Pattison at ¶ 18.

       {¶11} In his appellate brief, Dr. Huber recognizes that the language of Civ.R.

41(A)(1)(a) does not permit piecemeal dismissals of claims against a defendant.             He also

acknowledges that this is precisely what he attempted in the 2014 litigation. Civ.R. 41(A)(1)(a),

however, did not permit Dr. Huber to dismiss anything less than all of the claims against IMS

and IMS Holdings, and his attempts to do so were nullities. See Perez Bar & Grill at ¶ 7. As a

result, each of those claims is still pending in the 2014 litigation, and there has not been a final

resolution on the merits for purposes of res judicata. See FOP at ¶ 19. The trial court erred by

dismissing Dr. Huber’s claims on that basis, and his first and second assignments of error are

sustained.

                               ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT AND
       DISMISSING WITH PREJUDICE APPELLANT’S BREACH OF FIDUCIARY
       DUTY CLAIMS FOR LACK OF VENUE.

       {¶12} Dr. Huber’s third assignment of error and the next section of his brief argue that

the trial court erred by concluding that the forum selection clause in the parties’ Limited Liability
                                                6


Agreement is mandatory, that the trial court erred by dismissing his claims on this basis, and

that, in any event, the IMS Defendants waived application of the forum selection clause by

litigating Dr. Huber’s employment claims in the 2014 litigation.

       {¶13} “Absent evidence of fraud or overreaching, a forum selection clause contained in

a commercial contract between business entities is valid and enforceable, unless it can be clearly

shown that enforcement of the clause would be unreasonable and unjust.” Kennecorp Mtge.

Brokers, Inc. v. Country Club Convalescent Hosp., Inc., 66 Ohio St.3d 173 (1993), syllabus. The

determination of whether a forum selection clause is enforceable is a question of law that this

Court reviews de novo. See Original Pizza Pan v. CWC Sports Group, Inc., 194 Ohio App.3d

50, 2011-Ohio-1684, ¶ 10 (8th Dist.), citing Baker v. LeBoeuf, Lamb, Leiby & Macrae, 105 F.3d

1102, 1104 (6th Cir.1997).

       {¶14} Forum selection clauses are usually classified as either permissive or mandatory.

State ex rel. Cordray v. Markedonoja Tabak 2000, 189 Ohio St.3d 73, 2010-Ohio-2903, ¶ 15,

citing Emerald Grande, Inc. v. Junkin, 334 Fed.Appx. 973, 975 (11th Cir.2009). “A permissive

clause authorizes jurisdiction in a designated forum, but does not prohibit litigation elsewhere,

whereas a mandatory clause dictates an exclusive forum for litigation under the agreement.”

Markedonoja Tabak 2000 at ¶ 15. A forum selection clause is mandatory when it specifies that

litigation will be brought within a designated forum and reflects the parties’ intent that

jurisdiction in that forum is exclusive. EI UK Holdings, Inc. v. Cinergy UK, Inc., 9th Dist.

Summit No. 22326, 2005-Ohio-1271, ¶ 21. For example, when a forum selection clause does

not refer specifically to venue and contains no language indicating that the referenced forum is

exclusive, it is permissive with respect to jurisdiction. See id. at ¶ 22. A forum selection clause

that authorizes jurisdiction in one forum but does not prohibit jurisdiction elsewhere is not
                                                 7


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

26169, 2014-Ohio-4105, ¶ 5. Similarly, when the words “may” or “should” are used, it signifies

the parties’ intent that a forum selection clause is permissive. Markedonoja Tabak 2000 at ¶ 16.

On the other hand, a forum selection clause that provides that “jurisdiction and venue are fixed”

in the designated forum contains “words of exclusivity” that make it mandatory. (Emphasis in

original.) Bohl v. Hauke, 180 Ohio App.3d 526, 2009-Ohio-150, ¶ 20.

       {¶15} The forum selection clause in the Limited Liability Agreement2 at issue in this

dispute provides:

        8.13 Governing Law; Forum. This Agreement and the rights and obligations
       of the parties hereunder shall be governed by and interpreted, construed and
       enforced in accordance with the internal laws of the State of Delaware. Any
       proceeding arising out of or relating to this Agreement shall be brought in the
       courts of the State of Delaware, or, if it has or can acquire jurisdiction, in the
       United States District Court in Delaware. This provision may be filed with any
       court as written evidence of the knowing and voluntary irrevocable agreement
       among the parties to waive any objections to jurisdiction, to venue or to
       convenience of forum.

The language of this clause unambiguously reflects the parties’ intent that the Courts of

Delaware will be the exclusive forum for disputes arising from the agreement: it addresses both

choice of law and venue and provides that “[a]ny proceeding” related to or arising from the

agreement “shall be brought” in Delaware. The trial court did not err by concluding that this

forum selection clause is mandatory. Dr. Huber’s third assignment of error is overruled.

       {¶16} Dr. Huber has also argued that the IMS Defendants waived their ability to assert

the forum selection clause by participating in the 2014 litigation.       In light of this Court’s

conclusion that Dr. Huber’s claims are still pending in that case, this portion of his assignment of

error is premature.

       2
         Dr. Huber has not challenged the trial court’s enforcement of the forum selection clause
in any other agreement between the parties.
                                                  8


       {¶17} Dr. Huber’s third assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 4

       THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT AND
       DISMISSING WITH PREJUDICE APPELLANT’S BREACH OF FIDUCIARY
       DUTY CLAIMS FOR LACK OF VENUE IN VIOLATION OF THE
       PROCEDURE PRESCRIBED IN OHIO CIV.R. 3(D)

       {¶18} Dr. Huber’s final assignment of error, combined with the previous section of his

brief, argues that the trial court erred by dismissing the claims that were affected by the forum

selection clause with prejudice instead of following the procedure contemplated by Civ.R. 3(E)3.

The IMS Defendants have conceded error in this respect, and this Court agrees.

       {¶19} Civ.R. 3(E) provides:

       Venue; No proper forum in Ohio. When a court, upon motion of any party or
       upon its own motion, determines: (1) that the county in which the action is
       brought is not a proper forum; (2) that there is no other proper forum for trial
       within this state; and (3) that there exists a proper forum for trial in another
       jurisdiction outside this state, the court shall stay the action upon condition that all
       defendants consent to the jurisdiction, waive venue, and agree that the date of
       commencement of the action in Ohio shall be the date of commencement for the
       application of the statute of limitations to the action in that forum in another
       jurisdiction which the court deems to be the proper forum. If all defendants agree
       to the conditions, the court shall not dismiss the action, but the action shall be
       stayed until the court receives notice by affidavit that plaintiff has recommenced
       the action in the out-of-state forum within sixty days after the effective date of the
       order staying the original action. If the plaintiff fails to recommence the action in
       the out-of-state forum within the sixty day period, the court shall dismiss the
       action without prejudice. If all defendants do not agree to or comply with the
       conditions, the court shall hear the action.

       If the court determines that a proper forum does not exist in another jurisdiction, it
       shall hear the action.

This Court has observed that Civ.R. 3(E) applies in the enforcement of forum selection clauses.

See Keehan Tennessee Invest., LLC v. Praetorium Secured Fund I, L.P., 9th Dist. Lorain No.


       3
         Civ.R. 3 was amended effective July 1, 2018, while this appeal was pending. The
language that was previously found in Civ.R. 3(D), which is referenced by the parties, is now
found in Civ.R. 3(E). The substance of the rule did not change.
                                                 9


15CA010800, 2016-Ohio-8390, ¶ 52. Because Civ.R. 3(E) applies, it is error for a trial court to

dismiss a case for improper venue when applying a forum selection clause; the appropriate

remedy is to implement the terms of Civ.R. 3(E). See Barrett v. Picker Internatl., Inc., 68 Ohio

App.3d 820, 827-828 (8th Dist.1990). Accordingly, the trial court erred by dismissing some of

Dr. Huber’s claims without considering application of Civ.R. 3(E).

       {¶20} Dr. Huber’s fourth assignment of error is sustained.

                                                III.

       {¶21} Dr. Huber’s first, second, and fourth assignments of error are sustained. His third

assignment of error is overruled. The judgment of the Summit County Court of Common Pleas

is affirmed in part and reversed in part, and this matter is remanded to the trial court for

proceedings consistent with this opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                             10


      Costs taxed equally to both parties.




                                                  LYNNE S. CALLAHAN
                                                  FOR THE COURT



TEODOSIO, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JAMES B. ROSENTHAL, Attorney at Law, for Appellant.

NANCY M. BARNES and LAURA L. W. SCHULTZ, Attorneys at Law, for Appellees.

MICHAEL T. GASS, Attorney at Law, for Appellees.
