[Cite as Clifton Steel Co. v. Trinity Equip. Co., 2018-Ohio-2186.]



                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA



                                   JOURNAL ENTRY AND OPINION
                                           No. 105675




                                     CLIFTON STEEL COMPANY

                                                             PLAINTIFF-APPELLEE

                                                       vs.

                                 TRINITY EQUIPMENT COMPANY

                                                             DEFENDANT-APPELLANT




                                                JUDGMENT:
                                                 AFFIRMED



                                         Civil Appeal from the
                                Cuyahoga County Court of Common Pleas
                                       Case No. CV-16-862464

              BEFORE: Boyle, J., E.A. Gallagher, A.J., and Blackmon, J.

              RELEASED AND JOURNALIZED:                        June 7, 2018
ATTORNEYS FOR APPELLANT

Scott J. Robinson
Aanchal Sharma
Gregory Thompson
Schneider Smeltz Spieth Bell, L.L.P.
1375 East Ninth Street, Suite 900
Cleveland, Ohio 44114


ATTORNEY FOR APPELLEE

Richard N. Selby
Dworken & Bernstein Co., L.P.A.
60 South Park Place
Painesville, Ohio 44077




MARY J. BOYLE, J.:
       {¶1}    Defendant-appellant, Trinity Equipment Company (“Trinity”), appeals the trial

court’s order granting plaintiff-appellee, Clifton Steel Company (“Clifton”), motion for

preliminary injunction.   Trinity raises the following assignments of error for our review:

       1. The trial court erroneously interpreted the Agreement.

       2. The trial court abused its discretion by finding, by clear and convincing
       evidence, that a preliminary injunction was warranted, thereby prohibiting Trinity
       from selling any product listed on Exhibit B to the Agreement to any entity
       identified on Exhibit A to the Agreement for one year after its termination.

       3. The trial court erroneously denied Trinity’s Motion to Dismiss Count I of
       Appellee’s complaint pursuant to Civ.R. 12(B)(6).

       {¶2}    Finding no merit to Trinity’s assignments of error, we affirm.

Procedural History and Factual Background

       {¶3}    Clifton is a steel manufacturer whose products include wear parts for the railroad

industry. Railroad wear parts are replaced on a consistent basis “to protect wear within the

[railroad] car itself.” Trinity sells railroad parts and has acted as Clifton’s sales agent since

1986. No written contract between the companies existed until May 4, 2012, when the parties

entered into a Sales Agent Agreement (“the Agreement”). The Agreement provided that Clifton

retained Trinity as its “authorized sales representative” for Clifton’s railroad wear parts and set

forth the terms of representation, compensation, and termination.

       {¶4}    Section 2 of the Agreement titled “Products and Customers,” states that Clifton’s

“assigned customer base is defined as all companies listed on Exhibit A – Customer Listing.”

Section 2 defines Clifton’s products as “listed on Exhibit B – Products Sold.”      Exhibit A lists

approximately 380 “customers” and Exhibit B lists over 600 “products.” Exhibits A and B are

part of the record, although the parties dispute whether they were attached to the Agreement at

the time of execution.
       {¶5}    As to termination, Section 5 of the Agreement, titled “Restriction on other

representation during the term of this agreement and from competing on termination” states,

       During the term of the agreement, Trinity shall not directly or indirectly engage in
       any business or in the sale of any other products that are competitive with Clifton,
       unless otherwise agreed upon in writing by Clifton.

       ***

       Trinity agrees that for a period of twelve (12) months immediately following the
       termination of their sales representation pursuant to this Agreement, whether such
       termination is at the instance of Clifton due to a breach of this Agreement by
       Trinity, or on Trinity’s own initiative, or mutually agreed upon by the parties
       hereto, Trinity shall not either, either directly or indirectly, as an employee, agent,
       officer, director, or shareholder of a corporation, or a member of a partnership,
       joint venture or other entity, or in any other capacity, engage in the sale or solicit
       the sale of, either on its own account or on the account of another, the products
       and services of Clifton Steel Company to Clifton’s customers, businesses, or
       users.

       {¶6}    Put simply, the latter part of Section 5 of the Agreement states that for one year

after termination of the Agreement, Trinity “shall not * * * engage in the sale or solicit the sale of

* * * the products and services of Clifton Steel Company to Clifton’s customers * * * (‘the

Termination Provision’).”

       {¶7}    The Agreement states that the Termination Provision “[s]hall not apply if Trinity

terminates this Agreement due to a default by Clifton or if Clifton terminates this Agreement

without cause.”

       {¶8}    It is undisputed that on October 20, 2015, Trinity terminated the Agreement;

however, the parties dispute whether Trinity terminated it for cause. Before one year had

passed after the Agreement’s termination, Trinity did business with 13 of Clifton’s customers.

As a result, on April 27, 2016, Clifton filed a complaint alleging two counts of breach of

contract. Count 1 alleged that Trinity’s business dealings with Clifton’s customers violated the
Agreement’s noncompete clause. Count 2 alleged that Trinity breached the Agreement by failing

to pay invoices.   Trinity moved to dismiss Count 1 of Clifton’s complaint under Civ.R. 12(B)(6)

arguing that the Termination Provision did not prohibit it from selling competitive products to

Clifton’s customers. The trial court denied Trinity’s motion.

        {¶9}    Clifton also filed a motion for preliminary injunction.         In its motion in

opposition to Clifton’s request for a preliminary injunction, Trinity argued that (1) the Agreement

did not contain a noncompete clause, (2) even if the Termination Provision constituted a

noncompete clause, it was not effective because Clifton defaulted by failing to perform its

obligations under the Agreement, (3) the scope of the noncompete clause did not extend to all of

the products and companies listed on Exhibits A and B because those exhibits were not attached

to the Agreement at the time of execution, and (4) preliminary injunction was not warranted after

an examination of the relevant factors.       As to the language contained in the Termination

Provision, Trinity argued that it is only prohibited from “becoming a secondary reseller of

[Clifton’s] products” for one year after the Agreement ended.

        {¶10} In response, Clifton argued that the Termination Provision constitutes a

noncompete clause and prohibits Trinity from selling “competitive products” for one year after

the Agreement ended.

        {¶11} On March 15, 2017, the court held a hearing on Clifton’s motion for preliminary

injunction. On March 22, 2017, the court issued an order granting Clifton’s motion.          In its

order, the court stated,

        This Court finds that [Clifton] has proven all of the elements necessary for a
        preliminary injunction by clear and convincing evidence. * * * [T]his Court
        determined that the non-compete provisions of the Sales Agent Agreement
        between the parties should be interpreted so as to prohibit Defendant Trinity
        Equipment * * * from selling to or soliciting any of Plaintiff’s customers
        identified in Exhibit “A” to the Sales Agent Agreement with respect to any of the
        railroad wear parts identified in Exhibit “B” to the Sales Agent Agreement for a
        period of twelve (12) months following the termination of the Sales Agent
        Agreement.

        ***

        This Court further finds that [Trinity’s] contention that it should be excused from
        these non-compete obligations because of some default on behalf of [Clifton] with
        respect to the Sales Agent Agreement is not well taken. This Court further finds
        by clear and convincing evidence that [Clifton] has demonstrated that it will suffer
        irreparable injury if the injunctive relief is not granted.

        ***

        This Court further finds that [Trinity] has not demonstrated that it will suffer any
        undue hardship as a result of the enforcement of this Agreement, and the public
        interest weighs in favor of enforcing contractual obligations between the parties.

        {¶12} It is from this order that Trinity appeals.1

Law and Analysis

        A. Interpretation and Scope of the Agreement’s
             Termination Provision

        {¶13} In its first assignment of error, Trinity argues that the trial court erroneously

interpreted the Agreement’s Termination Provision as prohibiting it from selling competitive

products, listed in Exhibit B, to Clifton’s customers, listed in Exhibit A.            Trinity also argues that

the trial court erred when it rejected its argument that, because Clifton failed to perform its

obligations under the Agreement, the Termination Provision does not apply.

        {¶14} The parties agree that, according to the terms of the Agreement, Trinity was

prohibited from selling “competitive products” while the Agreement was in force. The issue

before us, however, concerns the language used in the Termination Provision, which prohibits


1
  The trial court granted Trinity’s motion for stay of execution pending appeal. See journal entry dated April 28,
2017.
Trinity from selling “the products and services of Clifton Steel Company to Clifton’s customers”

for one year after termination of the Agreement.

       {¶15} In its journal entry granting the injunction, the trial court found that

       the non-compete provisions of the Sales Agent Agreement between the parties
       should be interpreted so as to prohibit Defendant Trinity Equipment from selling
       to or soliciting any of Plaintiff’s customers identified in Exhibit “A” to the Sales
       Agent Agreement with respect to any of the railroad wear parts identified in
       Exhibit “B” to the Sales Agent Agreement for a period of twelve (12) months
       following the termination of the Sales Agent Agreement.

       {¶16} On appeal, Trinity argues that the Termination Provision should be read literally,

holding that upon termination of the Agreement Trinity was prohibited from selling products

manufactured by Clifton. Clifton, on the other hand, argues that if taken literally, the provision

would be meaningless because Trinity would no longer be selling Clifton products after

termination of the Agreement. Clifton argues that the provision should be read broadly “to

include products and services of the same type and nature that Clifton was selling, but that were

manufactured by other companies.” To support this argument, Clifton relies on Exhibits A and

B, which it describes as follows: “Exhibit A defined the universe of customers that Trinity was

attempting to sell to on Clifton’s behalf and Exhibit B defined the types of Clifton Steel products

Trinity was attempting to sell to those customers.”

       {¶17} Our standard of review regarding contracts follows:

       The construction of a written contract is a matter of law that we review de novo.
       Our primary role is to ascertain and give effect to the intent of the parties. We
       presume that the intent of the parties to a contract is within the language used in
       the written instrument. If we are able to determine the intent of the parties from
       the plain language of the agreement, then there is no need to interpret the contract.

(Citations omitted.) Saunders v. Mortensen, 101 Ohio St.3d 86, 2004-Ohio-24, 201 N.E.2d 452,

¶ 9.
       {¶18}    “Contractual language is considered ambiguous where the meaning of the

language cannot be determined from the four corners of the agreement, or where the language is

susceptible to two or more reasonable interpretations.” Co. Wrench v. Andy’s Empire Constr.,

Inc., 8th Dist. Cuyahoga No. 94959, 2010-Ohio-5790, ¶ 19. When ambiguity is found, courts

interpret the parties’ intent, and thus, the meaning of the contract based on extrinsic evidence.

Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 132, 509 N.E.2d 411 (1987).

       {¶19} Generally, in interpreting the parties’ intent, contracts are to be construed against

their drafters. Known as the doctrine of contra proferentum, this rule in construing contract

terms against the drafter, however, “is a secondary rule of contract construction and is not

applicable when a primary rule of contract construction clarifies the meaning of the contract.”

Michael A. Gerard, Inc. v. Haffke, 8th Dist. Cuyahoga No. 98488, 2013-Ohio-168, ¶ 14, citing

Malcuit v. Equity Oil & Gas Funds, Inc., 81 Ohio App.3d 236, 610 N.E.2d 1044 (9th Dist.1992).

 In fact, “Ohio courts have generally resolved contract ambiguities against the drafter only where

parties lacked equal bargaining power to select contract language.” Id.; see also T.A.P. on Tap,

Inc. v. Sardis, 8th Dist. Cuyahoga No. 75755, 2000 Ohio App. LEXIS 2740, *13 (June 22, 2000)

(“[T]he doctrine is applied only when the contract is deemed ambiguous and parol evidence has

not revealed the parties’ intent. * * * Where contract terms are ambiguous, contra proferentum is

not preferred as a tool of interpretation although it is most appropriately utilized in situations

where the parties did not have equal bargaining positions.”). Here, the court held a hearing on

Clifton’s motion for preliminary injunction, at which the following evidence was presented

regarding the meaning of the Agreement and, in particular, the terms used in the Termination

Provision.
       {¶20} John Thomas testified that he is the president of Clifton and has been since 2014.

Thomas was not Clifton’s president when the Agreement was drafted, although he is familiar

with Trinity and the Agreement.

       {¶21} Thomas described Exhibit A as “a customer base that Clifton Steel has been selling

[railroad] parts to for a number of years.” Thomas testified that Exhibit A listed approximately

383 business entities that Trinity and Clifton considered “customers” or “prospects.” According

to Thomas, a “prospect” is a “potential customer” or a “customer that you haven’t done business

with in a while.”

       {¶22} Thomas described Exhibit B as “a portfolio of products that * * * for the most part

are sold throughout the history of our company into the railroad industry.”         According to

Thomas, Clifton has been manufacturing railroad parts for over 45 years, and although Clifton

does not actively sell all the parts on Exhibit B “at any one time, * * * a large portion of those

have been sold over the years by Clifton Steel.”

       {¶23} Thomas stated that noncompete clauses are particularly important in the railroad

wear parts industry because “it’s an annuity and it’s based on a relationship that once you have

your foot in the door and they buy your product, they are more than likely to continue to buy your

product.” Thomas testified that “competitive products” means “something manufactured by a

competitor.” Thomas also testified that the words “competitor” or “competitive products” were

not in the Termination Provision; however, according to Thomas, the Termination Provision

meant “that the products listed on Exhibit B could not be sold to a customer in Exhibit A.”

       {¶24} Keith Massey testified that he is the president and owner of Trinity and has been

since 2007. In May 2012, Massey signed the Agreement with Clifton, and on October 20, 2015,

he terminated the Agreement.      Massey testified that, since October 20, 2015, Trinity sold
railroad wear parts manufactured by companies other than Clifton to 13 customers listed on

Exhibit A. He also testified, however, that Trinity has “not sold one part of Clifton Steel’s”

since termination of the Agreement.

       {¶25} According to Massey, when he signed the Agreement, he was not “provided”

Exhibits A and B; rather, the exhibits “showed up at [his] attorney’s [office] a day after

termination of the agreement.”      Massey described Exhibit A as “a railroad wish list that

basically includes the entire rail industry.” Massey described Exhibit B as “an extensive list of

wear plates, parts, that Clifton Steel had the potential to manufacture or sell.” Massey testified

that, during the term of the Agreement, Trinity sold “[l]ess than 20” of these products

manufactured by Clifton.

       {¶26} Massey’s understanding of the Termination Provision is that “Trinity Equipment

cannot sell the parts or services of Clifton Steel to Clifton’s customers” upon termination of the

Agreement. In his opinion, this is a “wholesale style clause,” that should “prevent [Trinity]

essentially from warehousing [Clifton’s] products.” Put another way, Trinity’s argument is that

the Termination Provision prevented Trinity from being a secondary marketer or warehouser of

Clifton’s products for 12 months after the Agreement was terminated. Asked if he thought that

by signing the Agreement Trinity “would not be allowed to sell * * * products that are

competitive to Clifton’s products after terminating the agreement,” Massey answered,

“Absolutely not. * * * So during the term of the agreement, it was very clear that we could not

sell competitive parts. We agreed to that. We did not do it.”

       {¶27} After the preliminary injunction hearing, the court found on the record that the

“issue comes down to that interpretation of” the Termination Provision. “And it’s clear that

there is a differing opinion about what it means, what the intent of that paragraph was. * * * It’s
not clear what it means. The language is not clear.” The court noted that Trinity argued that

the language is plain, and the words “compete” or “competitive” are not there. Clifton, on the

other hand, argued that the provision “has no meaning without the understanding that we believe

the language conveys.” The court found that “the evidence that’s been presented thus far would

tend to support [Clifton’s] interpretation of what that language intended. It doesn’t make sense

any other way.”     The court found no evidence indicating that Clifton defaulted on the

Agreement, because “performance issues” would be between Clifton and its buyers, not between

Clifton and its selling agent, Trinity. Ultimately, the trial court found that the Termination

Provision prohibited Trinity from selling parts listed on Exhibit B to customers listed on Exhibit

A and granted the preliminary injunction.

       {¶28} Upon review, we find that the language used in the termination provision is

ambiguous, because it “is susceptible to two or more reasonable interpretations.” Thus, we turn

to the parties’ intent. The title or heading of Section 5 of the Agreement is: “Restriction on

other representation during the term of this agreement and from competing on termination.”

(Emphasis added.)    Additionally, the parties’ understanding of the scope of this restriction

resulted in two different interpretations. Nonetheless, it is evident from the record that the

parties necessarily contemplated some type of prohibition on competition upon termination of the

Agreement.

       {¶29} The trial court concluded that the restriction should be based on Exhibits A and B,

which were referenced in the Agreement, but not specifically in the Termination Provision.

Although Massey testified that Trinity was not “provided” these exhibits when he executed the

Agreement, he was at least aware of their existence because they are referenced in the document

he signed. “A party to a contract is responsible for reading what he signs.” Love v. Crestmont
Cadillac, 8th Dist. Cuyahoga No. 104807, 2017-Ohio-1555, ¶ 15. Further, even if Massey did not

receive the exhibits on the day that the parties executed the Agreement, there is no evidence that

Massey subsequently objected to the exhibits upon receiving them.

       {¶30} After review of the evidence, we agree with the trial court’s interpretation of the

Agreement. “The purpose in allowing non-competition agreements is to foster commercial

ethics and to protect the employer’s legitimate interests by preventing unfair competition.”

Cynergies Consulting, Inc. v. Wheeler, 8th Dist. Cuyahoga No. 90225, 2008-Ohio-3362, ¶ 18,

quoting Westco Group, Inc. v. City Mattress, 2d Dist. Montgomery No. 12619, 1991 Ohio App.

LEXIS 3878 (Aug. 15, 1991). “[T]he Supreme Court of Ohio ‘has long recognized the validity

of agreements that restrict competition by an ex-employee if they contain reasonable

geographical and temporal restrictions.’” Id. at ¶ 21, quoting Land Lake Emp. Group of Akron v.

Columber, 101 Ohio St.3d 242, 2004-Ohio-786, 804 N.E.2d 27.

       {¶31} The title of Section 5 as well as the reference to both Exhibits A and B in the

Agreement lead us to conclude that the parties intended the Termination Provision to mean that

Trinity could not sell any of the products listed on Exhibit B to any of the companies listed on

Exhibit A for a period of one year following termination of the Agreement, which we find to be

reasonable geographical and temporal restrictions.

       {¶32} Accordingly, we overrule Trinity’s first assignment of error.

       B. Preliminary Injunction

       {¶33} In its second assignment of error, Trinity argues that the trial court abused its

discretion in granting Clifton’s motion for a preliminary injunction.

       {¶34} The primary goal of preliminary injunctive relief is to preserve the status quo

pending final determination of the matter. Mears v. Zeppe’s Franchise Dev., 8th Dist. Cuyahoga
No. 90312, 2009-Ohio-27, ¶ 23. We review rulings on motions for preliminary injunctions for

an abuse of discretion. Crestmont Cadillac Corp. v. GMC, 8th Dist. Cuyahoga No. 83000,

2004-Ohio-488, ¶ 26-27. Under this standard, we must defer to the trial court’s factual findings

and may only reverse the trial court’s decision if it is unreasonable, arbitrary, or unconscionable.

“Essentially, ‘abuse of discretion’ describes a judgment neither comporting with the record, nor

reason.” In re S.E., 8th Dist. Cuyahoga No. 96031, 2011-Ohio-2042, ¶ 13, citing In re Wiley,

11th Dist. Lake No. 2007-P-0013, 2007-Ohio-7123.

        {¶35} The party seeking a preliminary injunction must show, by clear and convincing

evidence, the following:

              A substantial likelihood of success on the merits of the underlying claim;

              Irreparable harm will be suffered if the injunction is not granted;

              Issuing the injunction will not harm third parties; and

              The public interest would be served by issuing the injunction.

KLN Logistics Corp. v. Norton, 174 Ohio App.3d 712, 2008-Ohio-212, 884 N.E.2d 631, ¶ 12

(8th Dist.).

        {¶36} In finding that Clifton “has demonstrated that it is likely to succeed on the merits of

its claims,” the court construed the Termination Provision to prohibit Trinity from selling any

product on Exhibit B to any customer on Exhibit A. The trial court then found, by clear and

convincing evidence, “that since terminating the Agreement on October 20, 2015, [Trinity] has

improperly done business with” various Clifton customers.

        {¶37} The court also found that, “by clear and convincing evidence [Clifton] has

demonstrated that it will suffer irreparable injury if the injunctive relief is not granted.” As to

the final two prongs of the preliminary injunction test, the court found that Trinity “has not
demonstrated that it will suffer any undue hardship as a result of the enforcement of this

Agreement, and the public interest weighs in favor of enforcing contractual obligations between

the parties.”

        {¶38} After reviewing the record and the above-listed factors, we find that the court did

not abuse its discretion in granting Clifton’s motion for preliminary injunction.

        {¶39} The record supports the trial court’s finding related to the first factor considered for

purposes of preliminary injunction, which is whether Clifton is likely to succeed on the merits.

Here, Trinity terminated the Agreement and then immediately began doing business with at least

13 of the customers listed on Exhibit A in violation of the noncompete clause found in the

Termination Provision. As such, we find the record shows that Clifton was likely to succeed on

its breach of contract claim for Trinity’s alleged violation of the noncompete clause.

        {¶40} As to the second factor, the record supports the trial court’s finding that Clifton

“demonstrated that it will suffer irreparable injury if the injunctive relief[,] [which requests the

enforcement of the noncompete clause encompassing the companies listed in Exhibit A,] is not

granted.” Clifton has a legitimate interest in protecting the long-standing relationships it had

with its customers as well as those companies it tried to build relationships with through Trinity.

 See Mielcusny, Loosening the Rust Belt: Why Ohio Should Re-Examine Its Current Standard

for Determining the Enforceability of Covenants Not to Compete Contained in Employment

Agreements, 63 Cleve.St.L.Rev. 707, 714 (2015) (“The unfair competition that an employer

seeks to avoid through the use of a non-compete could also stem from a failure to protect

particular assets, such as customer bases[.]”).     Trinity was the sole and exclusive seller of

Clifton’s products for almost 30 years, had direct contact with all of Clifton’s customers, and was

essentially the “face” of Clifton’s products. As Clifton contends, enforcing the noncompete
clause would give Clifton time to assemble its own sales work force, introduce that work force to

its customers, create a new “face” for its products, build more direct relationships with its

customers, and take over all of the operations that Trinity performed for it.        Further, Clifton

established that it already suffered irreparable harm that could be contributed to Trinity’s

violation of the Agreement.      Clifton’s president testified that since the termination of the

Agreement between Clifton and Trinity, Clifton’s railroad wear parts business has decreased

“over 50 percent,” including significant decreases for Clifton’s two biggest customers, and

estimated that those lost sales cost Clifton “hundreds of thousands of dollars.”

       {¶41} The record also supports the trial court’s finding that enforcing the noncompete

clause as to all of the companies on Exhibit A — including those that were not customers of

Clifton — is also necessary to protect Clifton’s interests. The record supports a finding that

Trinity signed the Agreement, which prohibited it from selling to all of the companies listed on

Exhibit A, regardless of whether they were current customers of Clifton. As a result, any sales

Trinity made to any of those companies would violate the Agreement’s terms, and the record

supports the trial court’s finding that Trinity did violate the Agreement’s terms.

       {¶42} Turning to the third factor, the record supports the trial court’s order finding that

Trinity did not “demonstrate[] that it will suffer any undue hardship as a result of the

enforcement of this Agreement [including Exhibit A].” The record shows that neither Trinity nor

others would suffer undue hardship because the company sold products other than railroad wear

parts and that Trinity would only have to lay off an employee or two if the trial court granted the

injunction. Further, as the trial court aptly noted at the hearing, Trinity was aware of this

potential harm when it “hedged” offers with outside companies and decided to terminate the

Agreement with Clifton.
        {¶43} Finally, as to the fourth factor, the record supports the trial court’s finding that “the

public interest weighs in favor of enforcing contractual obligations between the parties.”

“[P]ersons have a fundamental right to contract freely with the expectation that the terms of the

contract will be enforced.” Nottingdale Homeowners’ Assn. v. Darby, 33 Ohio St.3d 32, 36,

514 N.E.2d 702 (1987).         Further, “preserving the sanctity of contractual relations and

preventing unfair competition have traditionally been in the public interest.” Century Business

Servs., Inc. v. Urban, 179 Ohio App.3d 111, 2008-Ohio-5744, 900 N.E.2d 1048, ¶ 17 (8th Dist.),

citing UZ Engineered Prods. Co. v. Midwest Motor Supply Co., Inc., 147 Ohio App.3d 382, 770

N.E.2d 1068 (10th Dist.2001).

        {¶44} Here, the parties voluntarily entered into the written Agreement on May 4, 2012.

The parties had been operating without a written Agreement from 1986 to 2012. The parties

agreed that Trinity would not sell products from Exhibit B to customers listed on Exhibit A for

the 12-month period following the termination of the Agreement.             After Trinity voluntarily

terminated the Agreement on October 20, 2015, it immediately began selling competitive

products to Clifton customers despite the noncompete clause in the Agreement. Therefore,

contrary to Trinity’s argument, enforcing the Agreement between the parties would actually serve

public interest.

        {¶45} In conclusion, the record shows that the trial court’s order granting the preliminary

injunction and finding that the noncompete clause’s scope encompasses all of the companies

listed in Exhibit A is reasonable and is not an abuse of discretion. Accordingly, we overrule

Trinity’s second assignment of error.

        C. Motion to Dismiss
       {¶46} In its third assignment of error, Trinity argues that the trial court erred in denying

its motion to dismiss Count 1 of Clifton’s complaint for breach of contract.

       {¶47} Trinity filed a motion to dismiss Count 1 for breach of contract under Civ.R.

12(B)(6) for failure to state a claim upon which relief can be granted. Trinity’s argument in

support of dismissing this claim is the same argument it raises on appeal — that Trinity did not

breach the plain reading of the Termination Provision. The court denied Trinity’s motion to

dismiss.

       {¶48} “In general, a decision denying a motion to dismiss is not a final appealable order.”

 Shane v. Tracy, 8th Dist. Cuyahoga No. 77025, 2000 Ohio App. LEXIS 3844 (Aug. 24, 2000).

See also R.C. 2505.02.     This court lacks subject matter jurisdiction to consider arguments

relating to Trinity’s third assigned error.    Ohio Constitution, Article IV, Section 3(B)(2).

Accordingly, we overrule Trinity’s third assignment of error.

       {¶49} Judgment affirmed.

       It is ordered that appellee recover from appellant the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

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 J. BOYLE, JUDGE

EILEEN A. GALLAGHER, A.J., CONCURS;
PATRICIA ANN BLACKMON, J., CONCURS IN PART AND
DISSENTS IN PART (WITH SEPARATE OPINION).
PATRICIA ANN BLACKMON, J., CONCURRING IN PART AND DISSENTING IN PART:

       {¶50} While I agree with the majority’s opinion that the trial court properly granted

Clifton’s motion for preliminary injunction, I would respectfully find that the majority’s

conclusion regarding the interpretation of the Termination Provision, and thus the scope of the

noncompete clause, is unreasonable. Consequently, I respectfully dissent.

       {¶51} To determine whether the trial court’s interpretation of the Termination Provision

is reasonable, we turn to the scope of the noncompete clause. In granting the preliminary

injunction, the court did not consider any factors specific to a noncompete clause, which “is

enforceable only to the extent it (1) is necessary to protect the company’s legitimate interest; (2)

does not impose undue hardship on the employee; and (3) is not adverse to public interest.”

Jacono v. Invacare Corp., 8th Dist. Cuyahoga No. 86605, 2006-Ohio-1596, ¶ 31.                    In

determining whether restrictions imposed by a noncompete clause are reasonable, courts should

consider the following factors:

       the absence or presence of limitations as to time and space * * *[;] [w]hether the
       employee represents the sole contact with the customer; whether the employee is
       possessed with confidential information or trade secrets; whether the covenant
       seeks to eliminate competition which would be unfair to the employer or merely
        seeks    to     eliminate ordinary competition; whether the
       covenant seeks to stifle the inherent skill and experience of the employee; whether
       the benefit to the employer is disproportional to the detriment to the employee;
       whether the covenant operates as a bar to the employee’s sole means of support;
       whether the employee’s talent which the employer seeks to suppress was actually
       developed during the period of employment; and whether the forbidden
       employment is merely incidental to the main employment.

Extine v. Williamson Midwest, Inc., 176 Ohio St. 403, 406, 200 N.E.2d 297 (1964), overruled in

part on other grounds, Raimonde v. Van Vlerah, 42 Ohio St.2d 21, 325 N.E.2d 544 (1975).

       {¶52} According to the record, there is evidence of the following.
       {¶53} First, the Termination Provision is limited to 12 months, and it appears to be

unlimited geographically within the United States. Second, Trinity was the sole or exclusive

contact with Clifton’s customers.    Third, testimony in the record shows that Clifton’s parts were

“standardized” products that did not involve confidential information or trade secrets. Fourth,

the court’s interpretation seeks to eliminate all competition in the railroad wear parts industry.

Fifth, it is unclear from the record whether the Termination Provision “seeks to stifle” Trinity’s

skills, although it appears that Trinity sold products other than railroad wear parts. There is no

evidence in the record as to what extent the remaining four factors apply to the case at hand.

Although the numbers in the record were admittedly not accurate or complete, Thomas testified

that Clifton lost at least $500,000 in sales after Trinity terminated the Agreement. Whether

these lost sales can be attributed to Trinity’s actions and the exact amount of damages, if any, are

facts to be determined at a future time.

       {¶54}     I would find that the trial court’s interpretation of the Termination Provision’s

restrictions is more encompassing than reasonably necessary to protect Clifton. Furthermore, in

my opinion, the restrictions impose an undue hardship on Trinity who, under the injunction as

granted, is prohibited from selling parts that Clifton has not manufactured in recent history to

companies with which Clifton has never done business. See Mid-West Presort Mailing Servs.,

Inc. v. Clark, 9th Dist. Summit No. 13215, 1988 Ohio App. LEXIS 615 (Feb. 10, 1988)

(“Employers should not receive insulation from all competition * * *; rather, they should only

receive protection from unfair competition”). In other words, I would find that an umbrella

prohibition on all competition within the railroad wear parts industry (i.e., incorporating Exhibits

A and B) is unreasonable. Rather, I would narrow the scope of the noncompete clause to prohibit
Trinity from selling, for a 12-month period, any product it previously sold for Clifton to any

customer to whom it previously sold to on behalf of Clifton during the term of the Agreement.
