[Cite as Ginn v. Stonecreek Dental Care, 2017-Ohio-4370.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           FAYETTE COUNTY




DAVID R. GINN, DDS,                                    :

        Plaintiff-Appellant,                           :    CASE NO. CA2016-10-014

                                                       :         OPINION
    - vs -                                                        6/19/2017
                                                       :

STONECREEK DENTAL CARE,                                :

        Defendant-Appellee.                            :



         CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                            Case No. 12 CVH 00459



Russell A. Kelm, 37 West Broad Street, Suite 860, Columbus, Ohio 43215, for plaintiff-
appellant

Wood & Lamping, LLP, Jeffrey R. Teeters, 600 Vine Street, Suite 2500, Cincinnati, Ohio
45202-2491, for defendant-appellee



        HENDRICKSON, P.J.

        {¶ 1} Plaintiff-appellant, David R. Ginn, DDS, appeals a decision of the Fayette

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

Stonecreek Dental Care ("Stonecreek Dental").

        {¶ 2} We have previously detailed the facts of appellant's case as follows:

        {¶ 3} This appeal stems from the sale of a dental practice owned by R. Douglas
                                                                      Fayette CA2016-10-014

Martin, DDS, located in Washington Court House. Ginn v. Stonecreek Dental Care, 12th

Dist. Fayette No. CA2014-06-015, 2015-Ohio-1600, ¶ 2 (Ginn I). In 2010, Dr. Ginn was

considering expanding his current dental practice, also located in Washington Court House,

and Dr. Martin was interested in selling his practice. Id. Following negotiations, Dr. Ginn and

Dr. Martin entered a contract for sale (contract) in which Dr. Ginn purchased "[a]ll right, title

and interest in and to the name R. Douglas Martin, DDS, which name Seller warrants and

represents to be the only trade name and trademark used by Seller in the course of its

business" (goodwill provision). Id. The contract provided Dr. Martin was prohibited from

engaging in business "within thirty (30) miles" of Dr. Ginn's practice for "five (5) years" from

October 2010 (noncompete provision). Id. Dr. Ginn and Dr. Martin also entered a separate

employment agreement whereby Dr. Martin was to work for Dr. Ginn one day per week. Id.

For various reasons, the relationship between Dr. Ginn and Dr. Martin deteriorated, and Dr.

Martin's employment ended in April 2011. Id.

       {¶ 4} Shortly after Dr. Martin stopped working for Dr. Ginn, Dr. Martin began working

for Stonecreek Dental one day per week in its Chillicothe office, which is located within 30

miles of Dr. Ginn's dental practice. Id. at ¶ 3. Dr. Clark Sanders, DDS, an owner of

Stonecreek Dental, communicated with Dr. Martin during his hiring process. Id. A business

consultant for Stonecreek Dental also communicated with Dr. Martin. Id. In September

2011, Stonecreek Dental produced radio advertisements using Dr. Martin's voice to

encourage people to see the dentists at Stonecreek Dental.             Id.   Stonecreek Dental

broadcasted these radio advertisements in nearby areas, including Washington Court House.

Id.

       {¶ 5} On November 15, 2012, Dr. Ginn filed a complaint against Dr. Martin and

Stonecreek Dental. Id. at ¶ 4. Relevant to this appeal, Dr. Ginn alleged that Stonecreek

Dental tortiously interfered with his business relationships because it "induced and assisted
                                               -2-
                                                                      Fayette CA2016-10-014

Defendant Martin in his wrongful conduct to cause Plaintiff's patients to cease their business

relationship with Plaintiff." Id. Additionally, Dr. Ginn alleged Stonecreek Dental knew of the

contractual relationship between Dr. Ginn and Dr. Martin, yet tortiously interfered with the

contract. Id. Specifically, Dr. Ginn claimed Stonecreek Dental tortiously interfered with the

contract by employing Dr. Martin within the geographic area prohibited by the noncompete

provision and by using Dr. Martin's voice in radio advertisements, which caused a loss of

business goodwill. Id.

       {¶ 6} A jury trial began on May 20, 2014. Id. at ¶ 5. At trial, Dr. Ginn elicited

testimony from Dr. Sanders that Dr. Martin had provided Dr. Sanders with a copy of the

contract and Dr. Martin assured Dr. Sanders working for Stonecreek Dental would not be in

violation of the contract. Id. Furthermore, Dr. Sanders testified that per MapQuest, Dr.

Ginn's office was more than 30 miles away from Stonecreek Dental's office. Id. Dr. Sanders

admitted the radio advertisements were produced for Stonecreek Dental using Dr. Martin's

name and voice. Id. An exhibit introduced at trial revealed the advertisements using Dr.

Martin's name and voice were broadcast in Washington Court House beginning in September

2011 and ending in January 2013. Id.

       {¶ 7} Dr. Ginn testified on his own behalf detailing his lost profits and stating that the

only difference in the way he practiced dentistry was that Dr. Martin had left. Id. at ¶ 6. Dr.

Ginn did not specifically identify any of his patients who left his treatment for Stonecreek

Dental. Id. Dr. Ginn admitted people have a choice as to which dentist they choose to see

and stated there are many reasons people stop seeing a specific dentist. Id. Furthermore,

Dr. Ginn opined that he does not keep a record of where patients transfer. Id. However, Dr.

Ginn also testified that he had always treated his patients well but that his business began

declining around the time Stonecreek Dental's radio advertisements began. Id.

       {¶ 8} At the conclusion of Dr. Ginn's case, both Stonecreek Dental and Dr.
                                              -3-
                                                                      Fayette CA2016-10-014

Martin moved for a directed verdict. Id. at ¶ 7. Dr. Martin argued Dr. Ginn failed to allege

facts supporting his breach of contract claim as well as that such claim proximately caused

any damages. Id. Dr. Martin further argued Dr. Ginn failed to establish damages to a

reasonable degree of certainty. Id. The trial court denied Dr. Martin's motion. Id. However,

the trial court granted a directed verdict in favor of Stonecreek Dental, finding Dr. Ginn failed

to show Stonecreek Dental possessed the requisite intent to interfere. Id.

       {¶ 9} With respect to Dr. Martin, the trial proceeded and the jury found he breached

the noncompete provision and awarded Dr. Ginn $125,000 in damages, plus interest. Ginn

v. Stonecreek Dental Care, 12th Dist. Fayette Nos. CA2015-01-001 and CA2015-01-002,

2015-Ohio-4452, ¶ 5 (Ginn II). We affirmed Dr. Martin's subsequent appeal from this

judgment. Id. at ¶ 31, jurisdiction declined by 145 Ohio St.3d 1422, 2016-Ohio-1173. Dr.

Ginn appealed the trial court's decision to grant a directed verdict in favor of Stonecreek

Dental, which we affirmed in part and reversed in part. Ginn I at ¶ 37. We affirmed the trial

court's judgment granting a directed verdict in favor of Stonecreek Dental regarding Dr.

Ginn's tortious interference with business relationships claim, reversed as to Dr. Ginn's

tortious interference with contract claim, and remanded the matter for further proceedings.

Id.

       {¶ 10} On remand, the trial court set a trial date in June 2016, which the trial court

continued because Stonecreek Dental moved for summary judgment on the basis the trial

would be simply relitigating the damages already awarded from the previous trial. In July

2016, Dr. Ginn moved to compel discovery of financial information from Stonecreek Dental

as well as moved for leave to amend his complaint to request emotional distress damages.

The trial court orally granted Dr. Ginn's motion to compel discovery. Before Dr. Ginn

received the requested information, the trial court granted Stonecreek Dental's motion for

summary judgment, denied Dr. Ginn's motion for leave to amend his complaint, and this
                                               -4-
                                                                       Fayette CA2016-10-014

appeal followed.

       {¶ 11} Assignment of Error No. 1:

       {¶ 12} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO

STONECREEK DENTAL IN A CASE IN WHICH THIS COURT PREVIOUSLY REVERSED A

DIRECTED VERDICT FOR STONECREEK [DENTAL] AND REMANDED THE CASE FOR

TRIAL.

       {¶ 13} Dr. Ginn presents several issues for review under his first assignment of error.

Dr. Ginn contends the trial court erred in granting summary judgment in favor of Stonecreek

Dental pursuant to the single satisfaction rule because Stonecreek Dental's actions were

intentional and Stonecreek Dental waived the affirmative defense of collateral estoppel;

therefore, the proper analytical framework is pursuant to the collateral source rule.

Additionally, Dr. Ginn argues, if the single satisfaction rule does apply, he should still be able

to seek recourse for uncompensated damages suffered due to Stonecreek Dental's

intentional interference. Dr. Ginn further contends the trial court erred by finding he failed to

provide new evidence of such uncompensated damages.

       {¶ 14} We review a trial court's ruling on a motion for summary judgment de novo.

Grizinski v. Am. Express Fin. Advisors, Inc., 187 Ohio App.3d 393, 2010-Ohio-1945, ¶ 14

(12th Dist.). "De novo review means that this court uses the same standard that the trial

court should have used, and we examine the evidence to determine whether as a matter of

law no genuine issues exist for trial." Morris v. Dobbins Nursing Home, 12th Dist. Clermont

No. CA2010-12-102, 2011-Ohio-3014, ¶ 14. Summary judgment is proper if there are no

genuine issues of material fact to be litigated, the moving party is entitled to judgment as a

matter of law, and reasonable minds can come to only one conclusion, and that conclusion is

adverse to the nonmoving party. Civ.R. 56(C); Williams v. McFarland Properties, LLC, 177

Ohio App.3d 490, 2008-Ohio-3594, ¶ 7 (12th Dist.). The moving party bears the initial
                                               -5-
                                                                         Fayette CA2016-10-014

burden of demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 75

Ohio St.3d 280, 293, 1996-Ohio-107. If the moving party meets its burden, the nonmoving

party has a reciprocal burden to set forth specific facts showing a genuine issue for trial. Id.

       {¶ 15} Dr. Ginn contends Stonecreek Dental committed the intentional tort of tortious

interference with contract; therefore, the trial court's decision that the collateral source rule

did not apply allowed Stonecreek Dental to enjoy the benefits received by its intentional

interference without being subject to liability. The elements of tortious interference with

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) the lack of justification,

and (5) resulting damages. Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171,

176 (1999).

       {¶ 16} A plaintiff asserting tortious interference with contract may, upon competent

proof, recover any damages proximately caused by the tortfeasor's misconduct. Davison

Fuel & Dock Co. v. Pickands Mather & Co., 54 Ohio App.2d 177, 181 (1st Dist.1977). These

damages may include, but are not limited to, damages otherwise recoverable in an action for

breach of contract. Id. Accordingly, "the mere existence of a plaintiff's inchoate cause of

action against one party for breach of contract does not foreclose an action in tort against

another party for all damages suffered by reason of the latter's inducement of such a

breach." Id. at 182. However, "the fact that a plaintiff has separate and independent causes

of action in contract and in tort does not permit him to recover more than the amount of

damage actually suffered as a consequence of the injury resulting from the wrongful breach

of his contract." Id. A plaintiff must "allege and prove the existence of additional damages

attributable" to the defendant to be awarded damages on each of the separate claims.

(Emphasis sic.) Id.

       {¶ 17} Traditionally, "an injured party is entitled to only one satisfaction for his injuries,
                                                -6-
                                                                      Fayette CA2016-10-014

and th[e] receipt of full compensation from one of several persons whose concurrent acts of

negligence are the basis of a suit for damages for personal injuries releases all." (Citation

omitted.) Seifert v. Burroughs, 38 Ohio St.3d 108, 110 (1988). Common law recognizes this

principle as the single satisfaction rule. In such instance, the question becomes whether the

initial judgment fully compensated the appellant for all his injuries or for merely part of them.

Id. In the latter case, the appellant would be entitled to pursue damages for the remainder of

his injuries. Id.

       {¶ 18} The collateral source rule is the judicial refusal to credit to the benefit of the

wrongdoer money or services received by a plaintiff from an independent third party. Pryor v.

Webber, 23 Ohio St.2d 104, 107 (1970). "Substantively, the collateral source rule is an

exception to the general rule in tort actions that the measure of the plaintiff's damages is that

which will make [him] whole." Klosterman v. Fussner, 99 Ohio App.3d 534, 538 (2d

Dist.1994). The rationale for this exception is to prevent the benefits the plaintiff receives

from an independent source from reducing the amount of damages a plaintiff may recover

from another wrongdoer.       Pryor at 107. In Ohio, the exception has been applied to

"insurance carriers, workers' compensation programs, employer disability programs,

Medicare, and Social Security benefits." Klosterman at 539, citing Sorrell v. Thevenir, 69

Ohio St.3d 415 (1994). The exception has yet to be extended in civil actions to co-

defendants or others potentially liable in tort. Klosterman at 539.

       {¶ 19} Nevertheless, the Second District in Klosterman found the rationale of the

collateral source rule extends to intentional tortfeasors, including situations where the rule

would not traditionally apply. Id. at 540. We find such extension of the collateral source rule

consistent with its purpose to assure a "tortfeasor does not benefit, by way of a reduced

damage award, from payments which the plaintiff receives from an independent third party."

Id. Likewise, this purpose is consistent with R.C. 2307.25(A), which provides an intentional
                                               -7-
                                                                        Fayette CA2016-10-014

tortfeasor no right of contribution from other tortfeasors who merely acted negligently.

       {¶ 20} Stonecreek Dental contends Dr. Ginn failed to allege additional damages

attributable solely to the wrongful acts of interference by Stonecreek Dental thereby

precluding any further recovery by Dr. Ginn.          Stonecreek Dental references the jury

instructions charging the jury with determining damages, including lost profits due to the

breach of contract, that were proximately caused by, and the natural and probable results of,

any claimed breach of contract. Dr. Ginn's original complaint alleged harm for his tortious

interference claim by loss of business goodwill, loss of patients, diminution of business value,

and lost profits. Therefore, at first glance it would appear the trial court charged the jury with

considering the alleged damages in their entirety and the jury returned a single judgment on

only the breach of contract claim. In which case, such judgment would serve as full

satisfaction of the injury attributable to the breach of contract and tortious interference claims,

precluding further recovery without alleging additional damages. See Martin v. Jones, 4th

Dist. Adams No. 14CA992, 2015-Ohio-3168, ¶ 70 (finding plaintiff may not recover

duplicative damages simply because they alleged separate causes of action in contract and

tort resulting from a breach of contract); Davison Fuel & Dock Co. v. Pickands Mather & Co.,

54 Ohio App.2d 177, 182 (1st Dist.1977) (stating plaintiff may not recover more than the

amount of damage suffered).

       {¶ 21} However, this case presents a unique set of circumstances because the trial

court granted a directed verdict to Stonecreek Dental during the first trial at the close of Dr.

Ginn's case-in-chief. Therefore, the trial court charged the jury to consider only those

damages allocable to Dr. Martin's wrongdoing. See, e.g., Seifert v. Burroughs, 38 Ohio St.3d

108, 111 (1988) (finding jury considered total entitlement for injuries where jury "had before it

the entire list of injuries suffered by appellant and not a mere portion allocable to [one party]

alone"). Contrary to Stonecreek Dental's assertion otherwise, the fact Dr. Ginn alleged
                                                -8-
                                                                         Fayette CA2016-10-014

similar injuries against each party stemming from Dr. Martin's breach does not preclude Dr.

Ginn from further pursuit of damages for injuries allocable to Stonecreek Dental because the

jury only considered damages allocable to Dr. Martin. Moreover, since we previously found

the collateral source rule applicable, Stonecreek Dental would not be entitled to reap the

benefits of any wrongdoing by way of a reduced damage award due to the judgment

rendered against Dr. Martin.

       {¶ 22} Stonecreek Dental further asserts the trial court properly granted summary

judgment because the jury in the first trial determined the full measure of Dr. Ginn's

damages, and without additional evidence of damages, no new factual dispute exists and

entitles Stonecreek Dental to judgment as a matter of law. However, as analyzed above, the

jury in the first trial did not make findings as to Stonecreek Dental's liability for Dr. Ginn's

tortious interference claim. Therefore, a genuine issue of material fact exists as to whether

Stonecreek Dental tortiously interfered with the contract, and if a jury finds it did, the extent of

any damages allocable to such action.

       {¶ 23} Next, Stonecreek Dental asserts the doctrine of collateral estoppel precludes

Dr. Ginn from relitigating his damages. Whereas, Dr. Ginn contends Stonecreek Dental

waived such defense because it failed to timely raise the affirmative defense by not filing an

answer. A review of the record reveals Dr. Ginn filed his claims against "Stonecreek Dental

Care" and a timely answer was filed by "Stonecreek Dental Care Chillicothe – J. Clarke

Sanders, D.D.S., LLC". The mere fact Stonecreek Dental captioned its responsive pleading

pursuant to its name as a legal entity, rather than using its trade name, as it appears in Dr.

Ginn's complaint, does not bar Stonecreek Dental from meeting its responsive pleading

requirements. Ebbing v. Stewart, 12th Dist. Butler No. CA2016-05-085, 2016-Ohio-7645, ¶

26. Moreover, contrary to Dr. Ginn's claim otherwise, Stonecreek Dental did not waive the

affirmative defense of estoppel, as it specifically raised estoppel in its answer.
                                                -9-
                                                                          Fayette CA2016-10-014

       {¶ 24} The doctrine of res judicata is composed of two concepts: claim preclusion,

also referred to as "estoppel by judgment," and collateral estoppel, also referred to as "issue

preclusion." Balboa Ins. Co. v. S.S.D. Distrib. Sys., 109 Ohio App.3d 523, 527 (12th

Dist.1996). "Claim preclusion bars the relitigation of the same cause of action between the

same parties." Id. Whereas, collateral estoppel prevents relitigation in a different cause of

action of an issue that has been actually and necessarily litigated and determined. Id.

Generally, in Ohio, a requisite of collateral estoppel is mutuality of parties. Id., citing

Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193 (1983), paragraph one of the

syllabus. However, the main principle throughout the determination of the applicability of

collateral estoppel "is the necessity of a fair opportunity to fully litigate and to be 'heard' in the

due process sense", and thus, it is left to the sound discretion of the trial court to permit an

exception to the mutuality requirement where justice so requires. Goodson at 200-01;

Balboa at 527. To successfully assert collateral estoppel, a party must plead and prove the

following elements:

               (1) The party against whom estoppel is sought was a party or in
               privity with a party to the prior action;

               (2) There was a final judgment on the merits in the previous case
               after a full and fair opportunity to litigate the issue;

               (3) The issue must have been admitted or actually tried and
               decided and must be necessary to the final judgment; and

               (4) The issue must have been identical to the issue involved in
               the prior suit.

Balboa at 528.

       {¶ 25} The original complaint names Dr. Martin and Stonecreek Dental as defendants

and both defendants remained parties to this action throughout Dr. Ginn's presentation of his

case-in-chief. Then, the trial court granted a directed verdict in favor of Stonecreek Dental,

which we subsequently reversed, finding Dr. Ginn presented sufficient evidence to pursue his
                                                - 10 -
                                                                      Fayette CA2016-10-014

tortious interference with contract claim. Meanwhile, the original trial continued with Dr.

Martin, who the jury rendered judgment against with respect to Dr. Ginn's breach of contract

claim and found for Dr. Martin on Dr. Ginn's tort claims. This unique procedural posture

posits the question whether justice so requires the application of the doctrine of collateral

estoppel via an exception to the mutuality requirement.

       {¶ 26} Considering our analysis above with respect to the jury's consideration of

damages and our previous finding the trial court erred by granting a directed verdict for

Stonecreek Dental, we find that justice does not require applying an exception to the

mutuality requirement. It is clear the jury considered the issue of damages with respect to

claims asserted against Dr. Martin. However, as analyzed above, the jury did not consider

such issue with respect to claims asserted against Stonecreek Dental because it was no

longer a party to the action. Therefore, collateral estoppel is inapplicable to the present case.

       {¶ 27} Dr. Ginn alternatively argues, even if the single satisfaction rule and collateral

estoppel are applicable, the trial court still erred by granting summary judgment in favor of

Stonecreek Dental because Dr. Ginn provided new evidence of his uncompensated

damages. However, due to our findings with respect to Dr. Ginn's first assignment of error,

his alternative arguments are now moot.

       {¶ 28} Accordingly, Dr. Ginn's first assignment of error is sustained.

       {¶ 29} Assignment of Error No. 2:

       {¶ 30} THE TRIAL COURT ERRED IN FAILING TO GRANT DR. GINN LEAVE TO

AMEND HIS COMPLAINT TO EXPLICITLY DEMAND EMOTIONAL DISTRESS DAMAGES.

       {¶ 31} Dr. Ginn contends the trial court erred by denying his motion for leave to

amend his complaint to include a demand for emotional distress damages stemming from his

tortious interference claim. In so doing, Dr. Ginn argues justice required granting his motion

for leave to amend because such amendment would not cause undue delay and would not
                                              - 11 -
                                                                        Fayette CA2016-10-014

be futile.

       {¶ 32} Pursuant to Civ.R. 15(A), a plaintiff may amend its complaint with leave of

court which "shall [be] freely give[n] * * * when justice so requires." An appellate court will not

reverse a trial court's decision on a motion to amend absent an abuse of discretion. Everhart

v. Everhart, 12th Dist. Fayette Nos. CA2013-07-019 and CA2013-09-026, 2014-Ohio-2476, ¶

44. An abuse of discretion is more than an error of law or judgment. Rather, it suggests the

"trial court's decision was unreasonable, arbitrary or unconscionable." State v. Perkins, 12th

Dist. Clinton No. CA2005-01-002, 2005-Ohio-6557, ¶ 8. "A review under the abuse-of-

discretion standard is a deferential review." State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-

2407, ¶ 14.

       {¶ 33} "Compensatory damages are defined as those which measure the actual loss *

* * [and] may, among other allowable elements, encompass direct pecuniary loss, * * * loss

due to the permanency of the injuries, * * * and physical and mental pain and suffering."

(Emphasis added.) Fantozzi v. Sandusky Cement Products Co., 64 Ohio St.3d 601, 612

(1992), superseded by statute on other grounds as stated by Evans v. Thobe, 2d Dist.

Montgomery No. 24283, 2011-Ohio-3501, ¶ 36. These among other elements of damages

are a matter for the trier of fact to assess because there is no standard by which such pain

and suffering may be measured. Id. With respect to pleading requirements, it is important to

note compensatory damages are classified as either "general" or "special." Robb v. Lincoln

Publ., 114 Ohio App.3d 595, 622 (12th Dist.1996). General damages, such as pain and

suffering, "are those which flow as a conclusion of law from the injury suffered" and "are

presumed by the injury and need not be pleaded or proved." Id. Special damages must be

specially pleaded as they are not presumed by the injury, but rather, "are those occasioned

by the special character, condition, or circumstance of the person wronged." Id.

       {¶ 34} The trial court's decision to deny Dr. Ginn's motion for leave to amend his
                                               - 12 -
                                                                      Fayette CA2016-10-014

complaint did not constitute an abuse of discretion because Dr. Ginn included a demand for

compensatory damages in his complaint. The basis for his proposed amendment is to

specifically include a demand for emotional distress damages flowing from the injury suffered

in his tortious interference claim. However, Dr. Ginn met the general damages pleading

requirement to seek emotional distress damages, and thus, his proposed amendment would

be futile, as the trier of fact may already consider his emotional distress in assessing any

possible damages.

       {¶ 35} Accordingly, Dr. Ginn's second assignment of error is overruled.

       {¶ 36} Assignment of Error No. 3:

       {¶ 37} THE TRIAL COURT ERRED IN FAILING ON REMAND TO COMPEL

DISCOVERY FROM STONECREEK DENTAL.

       {¶ 38} Dr. Ginn appears to argue the trial court abused its discretion by failing to

enforce its oral ruling in favor of Dr. Ginn on his original motion to compel discovery, and

then, later, granting summary judgment in favor of Stonecreek Dental before such discovery

was complete.

       {¶ 39} In his motion to compel discovery, Dr. Ginn sought financial information from

Stonecreek Dental as a parent entity, as opposed to financial information solely from the

Chillicothe location. Dr. Ginn asserts he sought this information to support an anticipated

request for punitive damages. Stonecreek Dental objected to the discovery, the parties

briefed the matter, and the parties appear to agree the trial court made an oral ruling granting

Dr. Ginn's motion. However, after a thorough review of the record, it does not appear the trial

court journalized its ruling in an entry before granting summary judgment in favor of

Stonecreek Dental. Accord King v. King, 12th Dist. Madison No. CA2015-03-009, 2016-

Ohio-2681, ¶ 56 (stating it is well-settled a court speaks only through its journal entries).

Further, "an entry is effective only when it has been journalized, that is, when it has been
                                             - 13 -
                                                                     Fayette CA2016-10-014

reduced to writing, signed by a judge, and filed with the clerk so that it may become a part of

the permanent record of the court." Huntington Natl. Bank v. Donatini, 12th Dist. Warren No.

CA2014-08-105, 2015-Ohio-67, ¶ 10.

       {¶ 40} Thus, Dr. Ginn's third assignment of error is not properly before us in this

appeal, and therefore, we have no jurisdiction to rule on this assignment of error.

       {¶ 41} Accordingly, the judgment of the trial court granting summary judgment in favor

of Stonecreek Dental is reversed, and the matter is remanded for further proceedings

according to law and consistent with this Opinion.


       RINGLAND and PIPER, JJ., concur.




                                             - 14 -
