[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, 2018ATTORNEYS 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 assignme nts 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 erroneous ly 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 assi gnments of error, we affirm. Procedural History and Factual Background {¶3} Clifton is a steel manufacturer whose pr oducts 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 compan ies 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 comp anies 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” a nd 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 th e 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 direc tly or indirectly, as an employee, agent, officer, director, or shareholder of a co rporation, 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 te rminated it for cause. Before one year had passed after the Agreement’s ter mination, Trinity did business with 13 of Clifton’s customers. As a result, on April 27, 2016, Clifton filed a co mplaint alleging two counts of breach of contract. Count 1 alleged that Trinity’s business dealings with Clifton’s customers violated theAgreement’s noncompete clause. C ount 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 tria l court denied Trinity’s motion. {¶9} Clifton also filed a motion for pre liminary 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 cl ause, (2) even if the Ter mination Provision constituted a noncompete clause, it was not e ffective because Clifton defau lted by failing to perform its obligations under the Agreement, (3) the scope of the noncompete clause di d not extend to all of the products and companies listed on Exhibits A a nd B because those exhib its were not attached to the Agreement at the time of execution, and (4 ) preliminary injunction wa s not warranted after

an examination of the relevant factors. As to the language contained in the Termination Provision, Trinity argued that it is only prohi bited from “becoming a secondary reseller of [Clifton’s] products” for one year after the Agreement ended. {¶10} In response, Clifton argued that the Termination Pr ovision 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 hear ing 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 prove n all of the elements necessary for a preliminary injunction by cl ear and convincing evidence. * * * [T]his Court determined that the non-compete provi sions 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 customersidentified 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 so me 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 [Clif ton] 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 enforcem ent of this Agreement, and the public interest weighs in favor of enforcing c ontractual 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 C lifton’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 Te rmination 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 Pr ovision, 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 a nd services of Clifton Steel Co mpany to Clifton’s customers” for one year after termination of the Agreement. {¶15} In its journal entry granting the in junction, the trial court found that the non-compete provisions of the Sales Agent Agreement between the parties should be interpreted so as to prohib it Defendant Trinity Equipment from selling to or soliciting any of Plaintiff’s customer s 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 Agreemen t for a period of twelve (12) months following the termination of the Sales Agent Agreement. {¶16} On appeal, Trinity argues that the Ter mination Provision shoul d be read literally, holding that upon termination of the Agreemen t Trinity was prohibite d from selling products manufactured by Clifton. Clifton, on the other ha nd, argues that if take n literally, the provision would be meaningless because Trinity would no longer be selling C lifton products after termination of the Agreement. Clifton argues that the provision should be read broadly “to include products and services of th e same type and nature that C lifton was selling, but that were manufactured by other companies.” To support th is argument, Clifton re lies 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 C lifton’s behalf and Exhib it B defined the types of Clifton Steel products Trinity was attempting to sell to those customers.” {¶17} Our standard of review rega rding contracts follows:

The construction of a written contract is a matter of la w 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 fro m 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 seconda ry 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 contr act 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 inte rpretation although it is most appr opriately utilized in situations where the parties did not have e qual bargaining positions.”). He re, 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 us ed in the Termination

Provision.{¶20} John Thomas testified that he is the pres ident of Clifton and has been since 2014. Thomas was not Clifton’s president when the Agreement was drafted, a lthough 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 a nd Clifton considered “customer s” 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 compan y into the railroad industry.” According to Thomas, Clifton has been manuf acturing 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 noncompe te clauses are particularly important in the railroad wear parts industry because “it’s an annuity a nd it’s based on a relations hip that once you have your foot in the door and they buy your product, th ey are more than likely to continue to buy your product.” Thomas testified that “competitive products” means “somethi ng manufactured by a competitor.” Thomas also testified that the words “competitor” or “co mpetitive 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 Ag reement with Clifton, and on October 20, 2015, he terminated the Agreement. Massey tes tified that, since October 20, 2015, Trinity soldrailroad wear parts manufactured by companies other than Clifton to 13 customers listed on Exhibit A. He also testified, however, that Trin ity has “not sold one pa rt 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 Exhi bit 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, Trin ity sold “[l]ess than 20” of these products manufactured by Clifton. {¶26} Massey’s understanding of th e Termination Provision is that “Trinity Equipment cannot sell the parts or services of Clifton Steel to Clifton’s cu stomers” 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 prevente d Trinity from being a secondary marketer or warehouser of Clifton’s products for 12 months af ter the Agreement was terminate d. Asked if he thought that by signing the Agreement Trinity “would not be allowed to sell * * * products that are competitive to Clifton’s produc ts after terminating the ag reement,” 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” th e Termination Provision. “And it’s clear that there is a differing opinion about wh at it means, what the intent of that paragraph was. * * * It’snot 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 provi sion “has no meaning without the understanding that we believe the language conveys.” The cour t found that “the evidence that’s been presented thus far would tend to support [Clifton’s] interpre tation of what that language in tended. 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, Tr inity. Ultimately, the trial c ourt 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 mo re reasonable interpretati ons.” 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.) Add itionally, the parties’ unde rstanding 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 co mpetition 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 Tr inity was not “provided” these exhibits when he executed the Agreement, he was at least aware of their existe nce because they are referenced in the document he signed. “A party to a contract is responsible for reading what he signs.” Love v. CrestmontCadillac , 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 th e 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-comp etition 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 tempor al 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 th e products listed on Exhibit B to any of the companies listed on Exhibit A for a period of one year following ter mination 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 injunctiv e relief is to preserve the status quo pending final determina tion of the matter. Mears v. Zeppe’s Franchise Dev. , 8th Dist. CuyahogaNo. 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 st andard, we must defer to the trial court’s factual findings and may only reverse the trial cour t’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 injuncti on 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 se rved 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” va rious 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 pre liminary injunction test, the cour t found that Trinity “has notdemonstrated that it will suffer any undue hardsh ip 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-lis ted factors, we find that the court did not abuse its discretion in granting C lifton’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 viol ation of the noncompete clause found in the Termination Provision. As such, we find the reco rd 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 encompassi ng 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 Covenant s 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-compet e 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 year s, had direct contact with all of Clifton’s customers, and was essentially the “face” of Clift on’s products. As Clifton cont ends, enforcing the noncompeteclause would give Clifton time to assemble its own sales work for ce, 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 decreas es for Clifton’s two biggest customers, and

estimated that those lost sales cost Clif ton “hundreds of thousa nds 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. Th e 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 Tr inity did violate the Agreement’s terms. {¶42} Turning to the third factor, the record s upports the trial court’ s order finding that Trinity did not “demonstrate[] that it will su ffer 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 co mpany sold products other than railroad wear parts and that Trinity would only ha ve to lay off an employee or two if the trial court granted the injunction. Further, as the tria l court aptly noted at the hearin g, 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 righ t to contract freely with the ex pectation 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 th e sanctity of contr actual relations and preventing unfair competition have traditiona lly 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 wr itten 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 de spite 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 gr anting the preliminary injunction and finding that the noncompete clau se’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 Clift on’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 re lief 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 Pr ovision. 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 matte r 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 reas onable 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 w ould respectfully find that the majority’s conclusion regarding the interpre tation of the Termination Provisi on, and thus the scope of the noncompete clause, is unreasonable. C onsequently, 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 fact ors 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; a nd (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 r easonable, 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 dispropor tional 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 empl oyment; and whether the forbidden employment is merely incident al 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 informati on 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 Trin ity sold products other than railr oad wear parts. There is no

evidence in the record as to wh at extent the remaining four f actors apply to the case at hand. Although the numbers in the record were admittedl y not accurate or comple te, 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 ac tions 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 reasonabl y necessary to protect C lifton. Furthermore, in my opinion, the restrictions impose an undue ha rdship on Trinity who, under the injunction as granted, is prohibited from selling parts that Clif ton has not manufactured in recent history to companies with which Clif ton 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 a ll 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 industr y (i.e., incorporating Exhibits A and B) is unreasonable. Rather, I would narrow the scope of the noncompe te clause to prohibitTrinity from selling, for a 12-month period, any pr oduct it previously sold for Clifton to any customer to whom it previously sold to on behalf of Clifton during the term of the Agreement.