[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.