         [Cite as Losch & Assocs., Inc. v. Polonczyk, 2016-Ohio-4950.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




LOSCH & ASSOCIATES, INC.,                         :          APPEAL NO. C-150716
                                                             TRIAL NO. A-1403754
        Plaintiff-Appellee,
                                                  :               O P I N I O N.
  vs.

THADDEUS J. POLONCZYK,                            :

        Defendant-Appellant/Third-
        Party Plaintiff,                          :

  vs.
                                                  :
DANIEL P. LOSCH,

    Third-Party Defendant.                        :




Civil Appeal From: Hamiton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 15, 2016



Wood & Lamping LLP, and C.J. Schmidt, for Plaintiff-Appellee,

FisherBroyles, LLP, and David G. Kern, for Defendant-Appellant/Third-Party
Plaintiff.
                     OHIO FIRST DISTRICT COURT OF APPEALS




SYLVIA S. HENDON, Presiding Judge.

       {¶1}    Defendant-appellant/third-party      plaintiff   Thaddeus    Polonczyk

challenges both the trial court’s grant of summary judgment to plaintiff-appellee

Losch & Associates, Inc., on Polonczyk’s claims for abuse of process and wrongful

discharge in violation of public policy, and the trial court’s denial of his motion for

sanctions.

       {¶2}   Because the trial court did not err in granting summary judgment to

Losch & Associates, and because it properly denied Polonczyk’s motion for sanctions,

we affirm its judgments.

                            Background and Procedure


       {¶3}   Daniel Losch is the president of Losch & Associates, an insurance

agency that primarily sells insurance for Allstate. Losch hired Polonczyk to work for

his agency as a sales associate in November of 2012. Upon his hiring, Polonczyk

executed a nondisclosure, nonsolicitation, and noncompete agreement with Losch &

Associates, and a confidentiality and noncompetition agreement with both Losch &

Associates and Allstate. The agreement executed between Polonczyk and Losch &

Associates placed various restrictions on Polonczyk for a 24-month period after his

employment was terminated, and it included a provision that he could not become

an employee of any competitive agency located within 60 miles of the office of Losch

& Associates. The second agreement, to which Allstate was also a party, placed

similar restrictions on Polonczyk for a one-year period after his employment was

terminated and prohibited him from working for any competitor located within one

mile of Losch & Associates during that period.



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       {¶4}   In February of 2013, Polonczyk was promoted into the position of sales

manager. But approximately nine months later, due to poor performance, Polonczyk

was made a commercial manager and his commission structure was changed. While

employed by Losch & Associates, Polonczyk had concerns that the agency was

engaging in several unethical practices, including sharing Allstate computer

passwords, utilizing fake names when engaging with customers, and improperly

storing customers’ social security numbers. Polonczyk filed anonymous complaints

with both Allstate and the Ohio Department of Insurance regarding his concerns.

       {¶5}   Polonczyk took a short leave of absence from work at the end of

December 2013. And in January of 2014, he rarely appeared at work. Although

Losch & Associates was unaware of it at the time, Polonczyk had been training with

another insurance agency during his absence in January. On January 21, 2014,

Polonczyk sent a text message resigning his employment to Daniel Losch. The text

message read “I’ve decided to accept one of the offers from another company. I start

immediately when I get back. I will bring in the computer and pick up my W2 at the

end of this week. I will be unavailable till then. I resign my position with your

agency effective immediately.”    Upon receiving this message, Losch texted the

following response to Polonczyk, “Your employment was terminated last Friday

when you didn’t come in to work. I will process your final pay check and have it for

you on Friday when you bring in the computer. Also as a reminder, do not delete any

work files from the computer.”

       {¶6}   After his employment with Losch & Associates ended, Polonczyk began

working for two different insurance agencies, Physicians Mutual and the Whitehouse

Agency. With the belief that Polonczyk was violating the noncompetition agreement




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                      OHIO FIRST DISTRICT COURT OF APPEALS



that he had signed with Losch & Associates, Daniel Losch contacted both Polonczyk

and the Whitehouse Agency to notify them of his concerns and request that

Poloncyzk cease contacting clients of Losch & Associates.

       {¶7}   On June 24, 2014, Losch & Associates filed suit against Poloncyzk for

breach of contract and misappropriation of trade secrets.            Polonczyk filed

counterclaims for abuse of process, tortious interference with business relationships,

and wrongful discharge in violation of public policy. Polonczyk additionally named

Daniel Losch as a third-party defendant in the claim for tortious interference with

business relationships. And he sought punitive damages from both Daniel Losch and

Losch & Associates.

       {¶8}   All parties filed motions for summary judgment on the claims raised

against them. The trial court granted summary judgment to Losch & Associates and

Daniel Losch on the claims brought by Polonczyk. But it denied Polonczyk’s motion

for summary judgment on Losch & Associates’ claims for breach of contract and

misappropriation of trade secrets.     On November 4, 2015, Losch & Associates

dismissed its claims against Polonczyk without prejudice. Following this dismissal,

Poloncyzk filed a motion for sanctions pursuant to Civ.R. 37 and Civ.R. 11. The trial

court denied Polonczyk’s motion for sanctions.

       {¶9}   Polonczyk has appealed from both the trial court’s entry granting

summary judgment to Losch & Associates and its entry denying his motion for

sanctions, raising three assignments of error for our review.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


                  Wrongful Discharge in Violation of Public Policy


       {¶10} In his first assignment of error, Polonczyk argues that the trial court

erred when it granted summary judgment to Losch & Associates on his claim for

wrongful discharge in violation of public policy.

       {¶11} We review a trial court’s grant of summary judgment de novo.

See Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Summary judgment is appropriately granted when there exist no genuine issues of

material fact, the party moving for summary judgment is entitled to judgment as a

matter of law, and the evidence, when viewed in favor of the nonmoving party,

permits only one reasonable conclusion that is adverse to that party. See State ex rel.

Howard v. Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994).

       {¶12} Losch & Associates had employed Polonczyk as an at-will employee.

Under the common law employment-at-will doctrine, either party may terminate the

employment relationship for any reason, with or without cause, without giving rise to

an action for damages. See Collins v. Rizkana, 73 Ohio St.3d 65, 67, 652 N.E.2d 653

(1995). The Ohio Supreme Court created a narrow exception to this employment-at-

will doctrine in Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d

228, 551 N.E.2d 981 (1990). In Greeley, the court held that an employee-at-will who

is discharged in violation of a public policy may maintain a cause of action for

wrongful discharge. Id. at 234.

       {¶13} To prove a claim for wrongful discharge in violation of public policy,

an employee must establish that a clear public policy existed, that dismissing the

employee jeopardized the public policy, that the dismissal was motivated by conduct




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                      OHIO FIRST DISTRICT COURT OF APPEALS



relating to the public policy, and that the employer had no overriding business

justification for the dismissal. See Collins at 69-70.

       {¶14} Polonczyk contends that Losch & Associates had terminated his

employment because he had reported the agency’s unethical practices to the Ohio

Department of Insurance and Allstate. He argues that terminating him on these

grounds violated the public policy established in R.C. 3905.14(B), which provides

that the superintendent of the Department of Insurance may suspend or revoke the

license of an agent for numerous reasons, including, as relevant to this case, failing to

disclose and report various violations of which the agent was aware.           See R.C.

3905.14(B)(13), (16), (25), (27), (30) and (39). He further argued that his discharge

violated the public policy set forth in R.C. 1349.19, which concerns the disclosure of

security breaches of computerized personal information, including social security

numbers. See R.C. 1349.19(C).

       {¶15} We need not consider whether the public policies identified by

Polonczyk would support a claim for wrongful discharge because he overlooks one

dispositive fact that renders his argument meritless: Polonczyk was not discharged

by Losch & Associates, but instead had resigned his employment. Polonczyk texted

Daniel Losch on January 21, 2014, to inform him that he had resigned effective

immediately.    Losch then responded that Polonczyk had been terminated the

preceding Friday, when he had failed to appear at work.

       {¶16} Polonczyk contends that a genuine issue of material fact exists as to

whether he had resigned his employment or had been terminated.                Polonczyk

testified in a deposition that he believed Daniel Losch had fired him without telling

him, because, prior to his resignation, he had not received his last paycheck and




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                     OHIO FIRST DISTRICT COURT OF APPEALS



Daniel Losch had requested that he bring his computer into the office.           This

testimony is not sufficient to create a genuine issue of material fact. The record

contains no evidence, other than Daniel Losch’s text message, that Losch &

Associates had taken any formal action to terminate Polonczyk’s employment. And

Polonczyk’s tendering of his resignation belies his argument that he believed that he

had been terminated.      Even if Losch & Associates had intended to terminate

Polonczyk’s employment, that termination had not yet taken effect at the time of

Polonczyk’s resignation. See Smith v. United Parcel Serv. of Am., 65 F.3d 266, 268

(2d Cir.1995) (notice of termination was effective when it made apparent to an

employee that it contained the “official position” of the employer). See also Calquin

v. Doodycalls Fairfax VA LLC, E.D.Va. No. 1:09cv543, 2009 U.S. Dist. LEXIS 83936,

*9 (Sept. 11, 2009) (reasonable notice requires that the “notice of termination must

effectively communicate the fact of the termination to the at-will employee”).

       {¶17} Polonczyk argues in the alternative that his resignation was actually a

constructive discharge.    An employee is constructively discharged when “the

employer’s actions made working conditions so intolerable that a reasonable person

under the circumstances would have felt compelled to resign.” Daudistel v. Village

of Silverton, 1st Dist. Hamilton No. C-130661, 2014-Ohio-5731, ¶ 31, quoting Mauzy

v. Kelly Servs., 75 Ohio St.3d 578, 664 N.E.2d 1272 (1996), paragraph four of the

syllabus. Polonczyk advances no specific evidence in support of this argument. And

following our review of the record, we find that it contains no evidence that

Polonczyk was constructively discharged.

       {¶18} Because Polonczyk had not been terminated, but rather had resigned

his employment with Losch & Associates, we hold that the trial court did not err in




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                      OHIO FIRST DISTRICT COURT OF APPEALS



granting summary judgment to Losch & Associates on Polonczyk’s claim for

wrongful discharge in violation of public policy. The first assignment of error is

overruled.

                                  Abuse of Process


       {¶19} In his second assignment of error, Polonczyk argues that the trial court

erred in granting summary judgment to Losch & Associates on his claim for abuse of

process.

       {¶20} Polonczyk’s claim for abuse of process was raised in response to Losch

& Associates’ claim for breach of contract, which alleged that Polonczyk had violated

the noncompete agreement executed between him and Losch & Associates by

soliciting clients of Losch & Associates and by working for a competitor located

within 60 miles of Losch & Associates.

       {¶21} Polonczyk’s argument in support of his abuse-of-process claim is

somewhat convoluted, but can be explained as follows. In his complaint, Polonczyk

alleged that the noncompete agreement that was executed between him, Allstate, and

Losch & Associates (imposing restrictions for a one-year period and prohibiting him

from working for a competitor located within one mile of Losch & Associates)

superseded the noncompete agreement that he had executed solely with Losch &

Associates because it was signed two days later than that agreement. Polonczyk

contended that because the noncompete agreement imposing the 60-mile

competition-space restriction had been superseded, Losch & Associate’s claim for

breach of contract was knowingly brought without legal basis and was an abuse of

process.     In his appellate brief, Polonczyk further alleged that “Losch used the

proceedings to secure something the court was powerless to order, which was an



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                       OHIO FIRST DISTRICT COURT OF APPEALS



injunctive relief against Polonczyk.” Polonczyk’s contention that the trial court was

powerless to order injunctive relief was not based on the argument that the court

inherently lacked power to order such relief. Instead, he argued that the trial court

could not order such relief because Polonczyk had not actually breached any

agreement or committed any behavior that would warrant the imposition of that

relief.

          {¶22} To establish a claim for abuse of process, a plaintiff must show “(1)

that a legal proceeding has been set in motion in proper form and with probable

cause; (2) that the proceeding has been perverted to attempt to accomplish an

ulterior purpose for which it was not designed; and (3) that direct damage has

resulted from the wrongful use of process.” Robb v. Chagrin Lagoons Yacht Club, 75

Ohio St.3d 264, 270, 662 N.E.2d 9 (1996), quoting Yaklevich v. Kemp, Schaeffer &

Rowe Co., L.P.A., 68 Ohio St.3d 294, 298, 626 N.E.2d 115 (1994). Stated more

succinctly, “abuse of process occurs where someone attempts to achieve through use

of the court what which the court is itself powerless to order.” Id. at 271.

          {¶23} The facts as alleged by Polonczyk simply do not support a claim for

abuse of process. Losch & Associates sued Polonczyk for breach of contract because

it wanted the trial court to order Polonczyk to stop soliciting its clients and cease

violating other terms of the noncompete agreement. The trial court had the power to

provide that relief. The fact that Polonczyk believes Losch & Associates’ claim to be

meritless, or that Losch & Associates later dismissed its claim, does not mean that it

was an abuse of process to bring the claim in the first place.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶24} The trial court did not err in granting summary judgment to Losch &

Associates on Polonczyk’s claim for abuse of process. The second assignment of

error is overruled.

                                Motion for Sanctions


       {¶25} In his third assignment of error, Polonczyk argues that the trial court

erred when it denied his motion for sanctions pursuant to Civ.R. 37(C). Polonczyk’s

motion for sanctions alleged that Losch & Associates had committed a discovery

violation by improperly denying various requests for admissions.

       {¶26} We review a trial court’s ruling on a motion for sanctions for an abuse

of discretion. See Rogers v. Armstrong, 1st Dist. Hamilton No. C-010287, 2002

Ohio App. LEXIS 1155, *11 (Mar. 15, 2002). A party may be subject to sanctions for

improperly denying a request for admission. Id., citing Salem Med. Arts and Dev.

Corp. v. Columbiana Cty. Bd. of Rev., 82 Ohio St.3d 193, 195, 694 N.E.2d 1324

(1998). Civ.R. 37(C) specifically provides that

       If a party, after being served with a request for admission under Rule

       36, fails to admit the genuineness of any documents or the truth of any

       matter as requested, and if the party requesting the admissions

       thereafter proves the genuineness of the document or the truth of the

       matter, he may apply to the court for an order requiring the other

       party to pay him the reasonable expenses incurred in making that

       proof, including reasonable attorney’s fees. Unless the request had

       been held objectionable under Rule 36(A) or the court finds that there

       was good reason for the failure to admit or that the admission sought

       was of no substantial importance, the order shall be made.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶27} During discovery, Polonczyk submitted the following request for

admission to Losch & Associates: “Admit that you have no evidence Ted Polonczyk

solicited business from [name of client] after his employment with Losch

terminated.” Polonczyk submitted five requests for admissions of this nature, each

identical but for the name of the client. Losch & Associates denied each admission.

In his motion for sanctions, Polonczyk argued that Losch & Associates should be

sanctioned for denying these requested admissions because he had proven that the

requests were true. To prove the truth of the requests, Polonczyk submitted his own

affidavit stating that he had not solicited any of the five named clients. And he

additionally submitted affidavits from two of the named clients stating that

Polonczyk had not attempted to solicit their business, as well as documents

demonstrating that the other three named clients remained customers of Losch &

Associates. In its responsive motion, Losch & Associates submitted an affidavit from

Daniel Losch stating that he and others in his office had spoken to the named clients,

and that each client had indicated that Polonczyk had contacted them in an effort to

sell them insurance after his termination from Losch & Associates.

       {¶28} The evidence submitted by Polonczyk did not prove the truth of the

requested admissions. Losch & Associates had been requested to admit that it had

no evidence that Polonczyk had solicited its clients. While the evidence submitted by

Poloncyzk supports his argument that he did not solicit clients of Losch & Associates,

it does not establish that Losch & Associates had no evidence to the contrary.

Because Polonczyk failed to meet his burden to establish that the requested

admissions were true, we hold that the trial court did not abuse its discretion in

denying Polonczyk’s motion for sanctions.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶29} The third assignment of error is overruled, and the judgment of the

trial court is affirmed.

                                                                      Judgment affirmed.



DEWINE and MOCK, JJ., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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