Forbes v. Nationwide Mut. Ins. Co. ( 2020 )

[Cite as Forbes v. Nationwide Mut. Ins. Co., 2020-Ohio-2802.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Ruth Forbes, :
Plaintiff-Appellant, :
No. 19AP-220
v. : (C.P.C. No. 14CV-4944)
Nationwide Mutual Insurance Company, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on May 5, 2020
On brief: James R. Leickly and William P. Tedards, Jr., for
appellant. Argued: William P. Tedards, Jr.
On brief: Bricker & Eckler LLP, Quintin F. Lindsmith, and
Ali I. Haque, for appellees. Argued: Ali I. Haque.
APPEAL from the Franklin County Court of Common Pleas
NELSON, J.
{¶ 1} Plaintiff-appellant Ruth Forbes appeals from the decision of the Franklin
County Court of Common Pleas granting summary judgment in favor of Nationwide Mutual
Insurance Company ("Nationwide") on her breach of contract and conversion claims. We
conclude after reviewing the matter afresh ("de novo") that Nationwide was entitled to
summary judgment on each claim, and accordingly we affirm the judgment of the trial
court.
{¶ 2} The trial court's March 13, 2019 Decision and Entry thoroughly lays out the
relevant facts as reflected in the record. Ms. Forbes and Nationwide entered into two
agreements in June of 2006 that governed her performance selling Nationwide insurance
policies from her Virginia office. The first was the Independent Contractor Agent's
No. 19AP-220 2
Agreement, or "IC Agreement," that appointed Ms. Forbes "as an agent to represent
[Nationwide] in Virginia." See Third Amended Complaint, Ex. 2. Nationwide agreed to
provide Ms. Forbes "with certain manuals, forms, records, and such other materials and
supplies as are necessary in the conduct of an insurance business," but specified that "[a]ll
such property * * * shall remain the property of [Nationwide] and shall be returned to
[Nationwide] in good condition upon any cancellation of" the IC Agreement. Id. at ¶ 1. The
agreement also stated: "Upon termination of this Agreement, you agree to return all
Confidential Information, and all copies thereof, to [Nationwide] immediately." Id. at ¶ 7.
Confidential Information included "customer policy information." Id.
{¶ 3} The second agreement was the Agency Executive Program Performance
Agreement, or "AE Agreement," relating to the performance levels that Nationwide
required Ms. Forbes to meet. See May 22, 2017 Third Amended Complaint, Ex 1. The sales
marks were set forth in the "Minimum Production Plan" attached to the original AE
Agreement (but not attached to this document in the record). The AE Agreement stated:
"All requirements of the Minimum Production Plan must be met on a monthly basis
throughout the term of this Agreement beginning on the effective date of the Minimum
Production Plan, including DWP, Life Commissions, and Life Sales. Nationwide shall, in
its sole discretion, measure the achievement of Agent. The Sales Results Report (1361)
monthly data will be used to calculate DWP, Life Sales, and Life Commissions." Id. at 1-2.
"DWP" referred to Total Direct Written Premium, defined as "[t]he sum of all of Agent's
direct written premiums from Nationwide Property/Casualty policies." Id. at 1.
{¶ 4} In its original iteration, the AE Agreement provided a "Production Period" of
36 months that could be extended by Nationwide in its discretion for "up to three * * *
months if Agent [Forbes] is not meeting the Minimum Production Plan during the final
three (3) months of the original Production Period." Id. Ms. Forbes "further agree[d] * * *
that failure to meet the requirements of the Minimum Production Plan may result in
termination of Agent's Nationwide Agent's Agreement." Id. at 2. Ms. Forbes also agreed to
"meet the requirements of a training and development program" consisting of "continuing
education on the products, coverages, and regulations that govern [the insurance]
industry." Id. at 5. Also pursuant to the agreement, Nationwide extended an interest-free
loan to Ms. Forbes, and provided her the opportunity, conditioned on her attaining certain
No. 19AP-220 3
sales goals in relation to the Minimum Production Plan, to have at least some of the loan
balance forgiven. Id. at 3-5. Shortly after entering into the AE Agreement, Ms. Forbes
executed a promissory note to Nationwide in the amount of $258,000. May 7, 2014
Complaint, Ex. 3.
{¶ 5} The parties formally modified that AE Agreement three times. They entered
into the First Modification on April 24, 2008. See Third Amended Complaint, Ex. 3. The
First Modification extended the Production Period to 72 months, provided a graduated
Modified Minimum Production Plan that set a final DWP requirement of $1,749,880 (for
month 72), provided for periodic "capital infusion" payments in lieu of "further Loan
disbursements" upon meeting certain production goals, and specified the education and
development courses that Ms. Forbes was required to complete. Id. at 2, 8, Ex. A, Ex. C,
and Ex. D. In addition, the First Modification altered the language governing the
calculation of DWP: "P&C DWP shall be defined herein as the sum of all of Agent's direct
written premiums from Nationwide P&C policies during the previous 12 month period and
shall be calculated on a 12 month moving basis as outlined in Exhibit A to this Modification.
* * * Nationwide shall, in its sole discretion, measure the achievement of Agent. The
monthly P&C DWP and Life Sales data shall be measured by use of the Sales Results Report
(Form No. 1361), or other such form developed by Nationwide in its sole discretion for use
in making such determination." Id. at 3.
{¶ 6} As so modified, the Agreement again specified that: "All requirements of the
Modified Minimum Production Plan must be met on a monthly basis thr0ughout the term
of this Agreement." Id. It set out increasing month-by-month DWP requirements through
month 72. Id. at Attachment A. It also recited that "[i]n order to successfully complete the
Modified AE Program, Agent understands and agrees that Agent must: (1) meet or exceed
the Year 6 P&C DWP on or before the conclusion of the seventy-two (72) month production
period; [and] (2) complete all education and development requirements * * *." Id. at 4. The
First Modification also provided that Ms. Forbes would "release[] and discharge[]
Nationwide * * * of any and all claims or causes of action * * * in any way relating to the AE
Program, the AE Agreement, and the IC Agreement from the beginning of time to the
present * * *." Id. at 11.
No. 19AP-220 4
{¶ 7} "Somewhere around October of 2008," Ms. Forbes began to believe that there
was a discrepancy between the DWP amounts with which she thought she should be
credited and the amounts actually reflected in Nationwide's reports. See, e.g., Forbes
Deposition at 229. She communicated her concerns about Nationwide's calculations to her
sales manager, Gary Edgerton, at that time, and continued to track the perceived
differences and communicate with Nationwide about the issue until the end of her tenure
as an agent. Id. at 71, 96-98.
{¶ 8} On June 17, 2010, the parties once again altered Ms. Forbes's production
requirements. The Second Modification to the AE Agreement "canceled and replaced" the
First Modification's Modified Minimum Production Plan attachment with a new one that
specified new, lower monthly DWP requirements, ending with a month-72 figure of
$1,537,428. Third Amended Complaint, Ex. 4 at 1, Ex. A. Like the First Modification, the
Second Modification contained a release requiring Ms. Forbes to release and discharge "all
claims or causes of action Agent has in any way relating to the AE Program, the AE
Agreement, and the IC Agreement from the beginning of time to the present * * *." Id. at 2.
{¶ 9} Ms. Forbes says that she received a communication from Nationwide on
March 30, 2012, confirmed by email of February 19, 2013, stating that while the Second
Modification had changed her "minimum production requirements to $1,537,428 in
Nationwide DWP at the end of Month 72," she "would be eligible to transition to career
status if [she] met 95%" of that figure; specifically, she would qualify if she were to achieve
"$1,460,556.60 in Nationwide DWP, [have] completed all of [her] Training and
Development requirements and [have] passed [her] fiduciary audit." See October 27, 2017
Memorandum in Opposition to Summary Judgment, Ex. 2.
{¶ 10} On May 18, 2012, Nationwide sent Ms. Forbes a demand letter stating that
her loan had been "deemed non-collectable" by the guarantor and that her "outstanding
debt" owed was $183,481.82. Ms. Forbes had stopped making payments, believing that
Nationwide was basing the payment amounts on "incorrect" calculations of DWP. Forbes
Deposition at 13 (also noting at 18 that there was to have been some loan forgiveness for
achieving DWP figures).
{¶ 11} The parties then executed their Third Modification to the AE Agreement in
September 2012. See Forbes Deposition, Ex. 10 and Appellant's Brief at 10-11
No. 19AP-220 5
(acknowledging joint agreement and execution). The Third Modification, acknowledged as
supported by "good and valuable consideration," Third Modification at 1, again specified
that the Production Period as contained in the AE Agreement as modified by the First
Modification would "end at the conclusion of the sevent[y]-second (72nd) full month," but
altered that period so as "to suspend Agent's seventy-two month production schedule for
the six month period beginning February 1, 2012 and ending July 31, 2012." The agreed
result was that Ms. Forbes's "production schedule * * * will conclude at the end of the
seventy-second (72nd) month, which [accounting for the suspended period] is March 31,
2013." Id. Like the previous modifications, the Third Modification contained a release of
claims, but Ms. Forbes crossed out the release language, initialed the crossed-out provision,
and signed the document on September 10, 2012. Id. Nine days later, a Nationwide
Regional Vice-President initialed the crossed-out release and signed the Third
Modification. Id.
{¶ 12} Nationwide terminated the IC Agreement and the AE Agreement in May of
2013, citing Ms. Forbes's failure to meet the Modified Minimum Production Plan
requirements. Third Amended Complaint at ¶ 5; June 13, 2017 Answer at ¶ 12. On May 24,
2013, she received a package from Nationwide containing a letter terminating her contracts
and instructing her to "[p]repare files for pick up (this does not include any broker
business)." August 4, 2017 Third Affidavit of Ruth Forbes (Forbes Deposition, Ex. 3) at ¶ 3-
4. Because Ms. Forbes found the directive "unclear," she called sales manager Edgerton for
"clarification." Id. at ¶ 4. Ms. Forbes avers that she was instructed "to turn over, not only
any remaining documents I might have reflecting Nationwide policyholder activity, but also
all of my own historical files and records on all my clients," including non-Nationwide
clients she had developed over "thirty years" during her pre-Nationwide tenure. Id.
According to Ms. Forbes, Mr. Edgerton asserted that all of her "client files and all contents
within belonged to Nationwide," and that she "had 'no choice' but to prepare those files for
pickup," even after she had "explained that more than half of the 1000 plus client files were
[her] prior clients with multiple policies before coming to Nationwide." Id. at ¶ 5-6. Ms.
Forbes discussed the situation with her daughter and the two "agreed that [they] would
proceed to get the files prepared for pickup as directed by Gary." Id. at ¶ 8. Ms. Forbes's
lawyer emailed a Nationwide representative on June 11, 2013 "to confirm that Ms. Forbes
No. 19AP-220 6
will make Nationwide's files and customer information available for pick up on Wednesday,
June 11, 2013 at 9:00 a.m. at her former Nationwide agency location." Forbes Deposition,
Ex. 4.
{¶ 13} Ms. Forbes filed suit against Nationwide almost a year later, on May 7, 2014.
Her suit originally claimed violation of R.C. 4111.03, the Ohio Minimum Wage Act;
fraudulent inducement; intentional misrepresentation; breach of contract; wrongful
termination in violation of public policy; a violation of R.C. 1335.11, the Ohio Wage Act, for
failure to pay commissions; and promissory estoppel. May 7, 2014 Complaint. Nationwide
counterclaimed for breach of the promissory note, seeking a claimed $171,478.34 unpaid
balance on the loan to Ms. Forbes. Nationwide obtained dismissal of several of the original
claims and Ms. Forbes amended the complaint twice before she eventually filed her Third
Amended Complaint. That version asserted claims for breach of contract ("including [the]
covenant of good faith and fair dealing"); unjust enrichment; and conversion (based on
Nationwide's destruction of the client files, which occurred after this litigation
commenced). May 22, 2017 Third Amended Complaint.
{¶ 14} Nationwide moved for summary judgment, which the trial court granted on
all claims. The trial court ruled that the release provision in the Second Modification barred
Ms. Forbes's claims because she "testified [that] she first became aware of Nationwide's
alleged breach of the AE Program contracts in 2008," and she therefore "at least had
constructive knowledge of Nationwide's possible faulty tracking of DWP numbers prior to,
or at the time she signed the Second Modification on June 17, 2010." March 13, 2019
Decision at 21. Even without the release, the trial court ruled, the breach of contract claim
would fail on its merits because: Ms. Forbes had failed to "identify any contractual
provision/term breached by Nationwide"; her assertion that Nationwide was required to
use "monthly compensation statements to measure the success of her agency" was
inconsistent with the AE Agreement's grant of "sole discretion" to Nationwide regarding
the measurement of DWP; and Ms. Forbes "admittedly failed to complete the educational
training required under the contracts and defaulted on the loan" she took out. Id. at 22-24.
The trial court also ruled that Ms. Forbes's conversion claim failed because she "was not an
'owner' of the files to the extent the files were about Nationwide policies and customers,"
and she had "implicitly consented" to the taking of the information she had "selected and
No. 19AP-220 7
packed up * * * for pick up by Nationwide." Id. at 27-28. The trial court ruled in
Nationwide's favor on the unjust enrichment claim, too; Ms. Forbes has not appealed from
the judgment against her on that count.
{¶ 15} As to Nationwide's counterclaim, the trial court held: "As Forbes has failed
to make any argument challenging Nationwide's status as a holder of the note, the amount
due, or the facts regarding notice of default and acceleration, the Court finds the evidence
in the record, even when construed in favor of Forbes, demonstrates Nationwide is entitled
[to] a judgment in its favor on the note in the total amount of $171,478.34 plus interest at
the statutory rate from the date of this judgment." Id. at 29. Ms. Forbes does not appeal
from the counterclaim judgment (as predicated on the loan, with the balance not having
been reduced given Nationwide's view that Ms. Forbes had failed to attain the requisite
DWP thresholds).
{¶ 16} Ms. Forbes has, however, appealed the dismissal of her breach of contract
and conversion claims. Her first assignment of error states: "The trial court erred as a
matter of law in granting Defendant/Appellee Nationwide Mutual Insurance Company's
Motion for Summary Judgment on Count 1 of the Third Amended Complaint (Breach of
Contract including the Covenant of Good Faith and Fair Dealing)." Her second assignment
urges: "The trial court erred as a matter of law in granting Defendant/Appellee
Nationwide's Motion for Summary Judgment on Count 4 of the Third Amended Complaint
(Conversion)." Appellant's Brief at v.
{¶ 17} We apply a de novo standard to a trial court's decision granting summary
judgment, and the analysis is "governed by the standard set forth in Civ.R. 56." Comer v.
Risko, 106 Ohio St. 3d 185, 2005-Ohio-4559, ¶ 8. The de novo standard of review
encompasses matters of law, including the interpretation and construction of written
contracts. Long Beach Assn. v. Jones, 82 Ohio St. 3d 574, 576 (1998). Under this standard,
we give no deference to a trial court's interpretation of legal issues. See, e.g., Holt v. State,
10th Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9. Thus, we examine the grant of summary
judgment afresh, conducting " 'an independent review of the record and stand[ing] in the
shoes of the trial court.' " See Bae v. Dragoo & Assocs., 10th Dist. No. 03AP-254, 2004-
Ohio-544, ¶ 6, quoting Mergenthal v. Star Banc Corp., 122 Ohio App. 3d 100, 103 (12th
Dist.1997).
No. 19AP-220 8
{¶ 18} Pursuant to Civil Rule 56, summary judgment "shall be rendered forthwith"
if the pleadings and evidentiary quality materials "show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law." It
"shall not be rendered unless it appears from the evidence * * * that reasonable minds can
come to but one conclusion and that conclusion is adverse to the party against whom the
motion * * * is made, [with the evidence] construed most strongly" in that party's favor.
Civ.R. 56(C); see also, e.g., Bostic v. Connor, 37 Ohio St. 3d 144, 146 (1988), superseded by
statute on other grounds as stated in Slauter v. Klink, 2d Dist. No. 18150, 2000 Ohio App.
LEXIS 3716 (Aug. 18, 2000). The moving party must identify those portions of the record
that "demonstrate the absence of a genuine issue of material fact on the essential element(s)
of the nonmoving party's claims," and the nonmoving party then cannot rest on the mere
allegations of the pleadings, but must point to specific facts showing a genuine question for
trial. Dresher v. Burt, 75 Ohio St. 3d 280, 294 (1996); see also, e.g., Payne v. Ohio
Performance Academy, Inc., 10th Dist. No. 17AP-202, 2017-Ohio-8006, ¶ 13.
{¶ 19} As to her contract claim, Ms. Forbes argues that the trial court erred by
disregarding an expert report that used Nationwide "Compensation Statements" to assess
DWP. Appellant's Brief at 21. She maintains that the Compensation Statements provide
the best available way to satisfy the "purpose of the Minimum Production Requirement as
stated by Nationwide's Rule 30(B)(5) witness -- determining viability by measuring
commission flows," because "Nationwide refuses to reveal any information or data to
support the unreconciled * * * numbers" in its Program Agency Performance Report—the
form that Nationwide elected to use in determining DWP. Id. at 21-22. Ms. Forbes also
argues that "Nationwide did not exercise its discretion in good faith and in accordance with
fair dealing, when, confronted with incontestable evidence that Ms. Forbes did her job and
met the minimum production requirement, it chose to terminate her contract anyway." Id.
at 24-25.
{¶ 20} In response, Nationwide argues, as it did to the trial court, that Ms. Forbes's
deposition testimony demonstrates that she cannot "identify a single term breached by
Nationwide." Brief of Appellee at 27. Nationwide submits that Ms. Forbes's assertion that
it was obliged to calculate DWP based on Compensation Statements is an attempt to assert
an independent claim for breach of a covenant of good faith and fair dealing, which is not
No. 19AP-220 9
recognized as a freestanding claim under Ohio law; her theory, says Nationwide, does not
rely on a breach of any term of the parties' agreements. Id. at 28-29. Moreover, Nationwide
urges that Ms. Forbes's arguments are without factual foundation in admitted evidence. Id.
at 30-31. And Nationwide argues that the language of the AE Agreement and the First
Modification, granting it "sole discretion" to measure an agent's performance and to
"measure[]" DWP "by use of the Sales Results Report (Form 1361), or such other form
developed by Nationwide * * * for use in making such determination," see First
Modification, allowed it to use the "agency synopsis reports to measure DWP production,
as it does with all Nationwide agents. Nothing in the AE Agreement allowed Forbes to
decide which reports to use to measure her DWP." Id. at 32.
{¶ 21} The Third Amended Complaint did lay out Ms. Forbes's theory of breach: it
was specifically predicated on the Second Modification. "Nationwide's May 24, 2013
termination of Ms. Forbes' contracts for failure to meet the modified P&C DWP minimum
production plan breached the Second Modification, as revised by the March 2012 [95%
communication], which set the minimum requirement at $1,460,556. * * * Ms. Forbes met
and exceeded the minimum production requirement well in advance of the conclusion of
the 72-month production period." Third Amended Complaint at ¶ 15-16. (Ms. Forbes had
sought also to advance a contract claim relating to the calculation of "her commissions after
executing the Second Modification," id. at ¶ 17, but she abandoned that commissions claim
during the course of the litigation. See, e.g., Forbes Deposition at 279.)
{¶ 22} As an initial matter, and viewing the evidence in the light most favorable to
Ms. Forbes, we cannot conclude that the release language to which she assented in 2010 as
part of the Second Modification bars her contract claim here. "A release is an absolute bar
to a later action on any claim encompassed within it, absent a showing of fraud, duress, or
other wrongful conduct in procuring it." Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio
St.3d 453, 2018-Ohio-15, ¶ 48. " 'Whether a release operates upon a certain liability
depends entirely upon the intention of the parties, which is to be gathered from the
language of the release and the state of facts then existing.' " Fox v. Nationwide Mut. Ins.
Co., 10th Dist. No. 17AP-745, 2018-Ohio-2830, ¶ 70, citations omitted (adding at ¶ 77 that
"[r]eleases from liability for future tortious conduct are generally not favored by the law
and will be narrowly construed"). In the usual course, " 'a release [of liability] is a binding
No. 19AP-220 10
agreement between the parties under which at least one party to the agreement relinquishes
an existing claim or cause of action against another party to the agreement.' " Lucarell at
¶ 55, quoting Williston on Contracts, Section 73:1, at 8 (4th Ed.2003)
{¶ 23} The release contained in the Second Modification specified that it worked to
discharge Nationwide of "all claims or causes of action Agent has in any way relating to the
AE Program * * * from the beginning of time to the present [June of 2010], including * * *
breach of contract." Second Modification at 2. The trial court correctly noted that when
she signed that modification, Ms. Forbes "knew, or should have reasonably known, * * *
that Nationwide's tracking of her agency's production was based on information other than
what she thought should or could be considered under the AE Program contracts * * *."
Decision and Entry at 22. But, as the trial court also noted, " ' "[a] cause of action for breach
of contract does not accrue until the complaining party suffers actual damages as a result
of the alleged breach." ' " Id. at 20, quoting Kincaid v. Erie Ins. Co., 128 Ohio St. 3d 322,
2010-Ohio-6036, ¶ 13, further citation omitted. And the claimed breach of which Ms.
Forbes complains is her 2013 termination, from which she had not suffered damages when
she agreed to the release in 2010. This case differs in that respect from Fox, where "the only
reasonable inference supported by the evidence * * * [was that] Fox's fraud claims accrued
prior to the time she executed the release." 2018-Ohio-2830, at ¶ 79. And it differs from
Sourial v. Nationwide Mut. Ins. Co., 10th Dist. No. 17AP-731, 2018-Ohio-2528, ¶ 45, where
again the plaintiff "acknowledged * * * that the fraudulent conduct alleged in [his]
complaint * * * occurred prior to the date" he signed the release. Because Ms. Forbes's
contract claim involving her (post-release) termination is not necessarily akin to the (pre-
release) tortious conduct alleged in Fox and Sourial, we do not think that the release
provided grounds for summary judgment here.
{¶ 24} Nonetheless, Ms. Forbes's undisputed knowledge, from at least October
2008 forward, that Nationwide was determining DWP in its own way instead of in the
manner in which she would have wished, does eviscerate her contract claim. When Ms.
Forbes entered into the Second Modification (invoked by her Third Amended Complaint)
and again when she executed the Third Modification, she knew full well of the divergence
between her calculations and calculation methodologies and Nationwide's. See, e.g.,
Forbes Deposition at 229 (Q. "at what point in time is it that you thought or believed that
No. 19AP-220 11
there was a discrepancy between what Nationwide was telling you it believed its DWP
numbers to be and what you thought your DWP numbers were?" A. "Somewhere around
October of 2008 it started"); see also id. at 96 ("when I saw in 2008 * * * around * * *
October, the numbers went in the adverse direction when we were steadily moving forward,
that's when I made contact with Mr. Edgerton and we had a conversation about it. I
continued to watch and began to print reports and make comparisons * * * "); 98 (Q. "so
from 2008 to 2010 * * * you continued to track this type of information because you * * *
were concerned that Revenue Connection continued to not track correctly your agency's
activities, correct?" A. "Correct."); 99 (her tracking moved from handwritten ledgers to
computerized spreadsheets: Q. "so from 2010--by 2010, do you think it was in electronic
format?" A. "It was.").
{¶ 25} Thus by the time that her DWP was reduced from a month 72, twelve-month-
moving figure of $1,749,000 (which she does not claim ever to have met, even by her own
calculations as based on Compensation Statements) to $1,537,428 (in the 2010 Second
Modification), or to 95 percent of that (pursuant to the March 30, 2012 communication she
invokes), and also by the time that Nationwide agreed to extend the 72-month end date to
March 31, 2013 (in the Third Modification), she knew that she and Nationwide calculated
DWP very differently. She offers no legally cognizable argument for claiming the benefit of
those mutual modifications while simultaneously asserting an extra-contractual unilateral
right to employ Compensation Statements as the basis for DWP determination.
{¶ 26} The express terms of the contract itself, a contract mutually modified three
times before the termination of which she complains, leave that determination exclusively
to Nationwide: "Nationwide shall, in its sole discretion, measure the achievement of Agent.
The monthly * * * DWP * * * shall be measured by the use of the Sales Results Report (Form
No. 1361), or such other form developed by Nationwide in its sole discretion for use in
making such determination." First Modification (2008) at 3. In making its DWP
"determination," Nationwide chose to "measure[]" DWP by agency synopsis reports (also
referred to as Program Agent Performance Reports) that determined DWP levels for Ms.
Forbes—levels that she concedes did not meet the contractual standards. See, e.g.,
Appellant's Reply Brief at 4-5 (quoting opinion of Ms. Forbes's expert that the DWP
amounts "per the Program Agent Performance Reports – Agency Synopsis do not [correlate
No. 19AP-220 12
with] the direct written premium amounts per the * * * Compensation Statements for the
fourteen months examined. We are not aware of any current information or data that
would reconcile these differences. Without this reconciliation we cannot give an opinion as
to the accuracy of the information in the Program Agent Performance Reports – Agency
Synopsis") (emphasis omitted). As the trial court said, Ms. Forbes "agreed [that] nothing
within the AE Program contracts required Nationwide to use compensation statements to
measure DWP. [Forbes Deposition at 215] * * * * [U]nder the AE Program contracts,
Nationwide did not have to use monthly compensation statements to measure DWP, and
* * * Nationwide, in its sole discretion, could decide how to measure DWP." Decision and
Entry at 23.
{¶ 27} Ms. Forbes falls back, therefore, on a contention that Nationwide breached a
duty of good faith and fair dealing by exercising that discretion to use the Performance
Reports and not the Compensation Statements. "In addition to a contract's express terms,
every contract imposes an implied duty of good faith and fair dealing in its performance
and enforcement." Lucarell, 2018-Ohio-15, at ¶ 42, citation omitted. "[T]here is no
violation of the implied duty unless there is a breach of a specific obligation imposed by the
contract, such as one that permits a party to exercise discretion in performing a contractual
duty or in rejecting the other party's performance." Id. at ¶ 43, citing Ed Schory & Sons,
Inc. v. Soc. Natl. Bank, 75 Ohio St. 3d 433, 443-44 (1996). That is what we understand Ms.
Forbes to argue here.
{¶ 28} But " '[g]ood faith' is a compact reference to an implied understanding not to
take opportunistic advantage in a way that could have not been contemplated at the time of
drafting, and which therefore was not resolved explicitly by the parties." Lucarell at ¶ 42,
quoting Ed Schory & Sons at 443-44 (further citation omitted). Ms. Forbes adduces no
evidence that it "could not have been contemplated" when the original contract was formed
in 2006 or at the time of the First Modification in 2008 that Nationwide would not use
Compensation Statements to calculate DWP; the contract originally specified that "[t]he
Sales Results Report ([form] 1361) monthly data will be used to calculate DWP" (and Ms.
Forbes does not even invoke that Report to us, at least by name, or describe what her levels
would have been pursuant to that specified form), and the contract then was changed to
reference the "Sales Results Report (Form 1361), or such other form developed by
No. 19AP-220 13
Nationwide in its sole discretion for use in making such determination." See 2006 AE
Agreement at Article 2; First Modification at 3; compare Decision and Entry at 23 ("There
is no evidence demonstrating that Nationwide measured/tracked DWP numbers for
Forbes' agency in a manner inconsistent with the terms of the original AE Agreement or
First Modification").
{¶ 29} And again, by the time in 2010 that the required DWP levels were reduced by
the Second Modification to bring Ms. Forbes within the striking distance that she argues
according to her own chosen (Commission Statements) method of calculation and by the
95 percent communication of 2012, see Complaint at ¶ 15 (relying on Second Modification
and related 2012 communication), Ms. Forbes was under no illusion at all that she and
Nationwide were calculating her DWP the same way. Having tracked the disparity for years
by that point, see Forbes's Deposition at 96-99, she can point to no evidence that the
difference "could not have been contemplated" at the time of the contract modifications on
which she relies. We have underscored that the Supreme Court of Ohio has conditioned
good faith enforcement of a contract on " 'consistency with the justified expectations of the
other party,' " Sourial, 2018-Ohio-2528, at ¶ 31, quoting Lucarell at ¶ 43. Especially having
opted to enter into the Second and Third Modifications reducing the DWP requirements
and suspending their application for six months, Ms. Forbes has no room to argue that she
would have been justified in expecting that the modified contract provided her with
discretion to specify the measure for determining whether she had met those requirements.
Compare, e.g., Greenzalis v. Nationwide Mut. Ins. Co., 10th Dist. No. 16AP-382, 2016-
Ohio-8344, ¶ 22, 24, 26 (modified AE Agreement controlled; "appellant undisputedly chose
to sign a modification").
{¶ 30} The trial court was correct to enter summary judgment against Ms. Forbes's
contract claim: the contract never bound Nationwide to use Compensation Statements or
forms reconciled to Compensation Statements in determining agent DWP levels, and there
is no evidence of a breach of a duty of good faith and fair dealing in Nationwide's use of
Agency Synopsis Reports in making that determination.
{¶ 31} What is more, it is undisputed that at the end of March 2013—the end of the
72-month Production Period, as specified in the Third Modification—Ms. Forbes fell short
of her required DWP level, even by her own calculations as based on Compensation
No. 19AP-220 14
Statements. Ms. Forbes's deposition is clear on this point: Q. "What is the position you're
taking today was the 12-month moving DWP number for your agency as of March 2013?"
A. "1,399,308.54." Q. "Can you say that again, please." A. "1,399,308.54." Forbes
Deposition at 269. That result does not meet the month 72 requirement of $1,537,428 set
forth in the Second Modification, or the 95 percent figure (of $1,460,556.60) referenced in
the 2012 and 2013 communications.
{¶ 32} The original AE Agreement had provided that "[a]ll requirements of the
Minimum Production Plan must be met on a monthly basis throughout the term of this
Agreement, * * * including DWP * * *." 2006 AE Agreement at Article 2. Similarly, the First
Modification provided that "[a]ll requirements of the Modified Minimum Production Plan
must be met on a monthly basis throughout the term of this Agreement, including the
Property and Casualty Direct Written Premium ('P&C DWP')." First Modification at 3. Ms.
Forbes attempts to respond to this requirement that an agent meet her DWP level every
month by noting other language from the First Modification that "Agent must: (1) meet or
exceed the Year 6 * * * DWP on or before the conclusion of the seventy-two (72) month
production period; [and] (2) complete all education and development requirements * * * ,"
First Modification at 4, then arguing that she met monthly DWP requirement "repeatedly"
by her calculations, see Appellant's Brief at 19-20, and concluding that her DWP obligation
would have ended at that point. But that position, envisioning on this record Ms. Forbes's
early "graduation" from the program, see Forbes Deposition at 272, does not square with
the language of the contract or with the history of the modifications.
{¶ 33} Ms. Forbes asserts, for example, that under her methodology, she met what
she saw as DWP requirements for early graduation in "October of 2011." Id.; see also id. at
356 (agency hit $1,467,178 in October 2011). But the parties entered into their Third
Modification almost a year after that, in September 2012. That Modification, the validity
of which Ms. Forbes does not contest and which was made well after Ms. Forbes was
notified of her loan default, see Forbes Deposition at 37, made clear (if any further clarity
was necessary) that her DWP requirements were ongoing. It also reestablished a fixed end
date for the Production Period: "her production schedule * * * will conclude at the end of
the seventy-second (72nd) month, which is March 31, 2013." Third Modification at 1
(emphasis added); see also Appellant's Brief at 7 (March [31], 2013 was "the end of Ms.
No. 19AP-220 15
Forbes' program"). Further still, when asked at her deposition whether she had understood
"that as part of your participation in the AE program that you were required on a monthly
basis to meet the minimum production requirements set forth in your contract for P&C
DWP," Ms. Forbes answered, "Yes." Forbes Deposition at 218. (Even beyond that, Ms.
Forbes also acknowledges that she never raised the issue of early graduation with
Nationwide and "did not" satisfy the education and training requirements specified in her
contract. Forbes Deposition at 273.)
{¶ 34} So even were Ms. Forbes's reading and use of her Compensation Statements
to govern determination of her DWP achievement, she would by her own terms not have
met the required level at the last month of the defined 72-month period.
{¶ 35} In light of the analysis sketched above, we need not reach the trial court's
further, alternative finding that summary judgment on the contract claim was appropriate
because Ms. Forbes had failed to satisfy her contractual obligations to complete the
education and training requirements. Compare Decision and Entry at 24. The trial court
did not err when granting summary judgment in Nationwide's favor on Ms. Forbes's breach
of contract claim, and we overrule the first assignment of error.
{¶ 36} Ms. Forbes's second assignment of error, urging that the trial court was
wrong to grant summary judgment against her conversion claim, fails as well. We note
initially that despite various references in Ms. Forbes's arguments in briefing to us, the
conversion claim—based on her allegation that "[b]y discarding or destroying Ms. Forbes'
files [at some time after February 2014], Nationwide * * * wrongfully exercised dominion
over her property to the exclusion of her rights," Third Amended Complaint at ¶ 35—is not
pled or appropriately analyzed here as a claim of "spoliation" of evidence. Compare
Appellant's Brief at 28 with Reply Brief at 17 (urging that "deliberate shredding was also an
act of spoliation" giving rise to adverse inferences, but acknowledging that there is no
"independent spoliation claim").
{¶ 37} Under Ohio law, "conversion is 'the wrongful exercise of dominion over
property to the exclusion of the rights of the owner, or withholding it from his possession
under a claim inconsistent with his rights.' " Wells Fargo Bank, N.A. v. Sessley, 188 Ohio
App.3d 213, 2010-Ohio-2902, ¶ 32 (10th Dist.), quoting Joyce v. Gen. Motors Corp., 49
Ohio St. 3d 93, 96 (1990). However, "a party who consents to the manner by which another
No. 19AP-220 16
deals with his property is estopped from asserting a claim for conversion." Ahlers v.
Pettinelli, 8th Dist. No. 86257, 2006-Ohio-1199, ¶ 16 (citation omitted). Ms. Forbes advises
us that Virginia law, which she thinks applicable to this claim, is to an effect quite "similar"
to Ohio's law of conversion. See Appellant's Brief at 30-31, citing PGI, Inc. v. Rathe Prods.,
Inc., 265 Va. 334, 344, 576 S.E.2d 438 (2003) (conversion includes "act of dominion
wrongfully exerted over property in denial of the owner's right"); compare AE Agreement
at Article 14 (which does not govern choice of law on non-contract issues: "This Agreement
shall be deemed to have been made under and governed by the laws of the State of Ohio
without regard to Ohio's choice of law rules").
{¶ 38} Ms. Forbes argues that although she herself turned the files over to
Nationwide, after her counsel had "confirmed" with Nationwide that Nationwide's "files
and customer information would be available for pick up," see Frederick Affidavit at ¶ 5-6,
and although she "did not attempt to physically confront Nationwide [representatives] to
block them from taking" the files she provided to them, the "taking" occurred "under
duress." Appellant's Brief at 28.
{¶ 39} The trial court correctly ruled that Ms. Forbes "was not an 'owner' of the files
to the extent the files were about Nationwide policies and customers." Decision and Entry
at 28. Moreover, the trial court held, by turning over the files to Nationwide under the
undisputed facts of record, Ms. Forbes "implicitly consented to the taking of those files as
she – with the assistance of family and staff – selected and packed up all the hard copy files
for pick up by Nationwide, and did not immediately [or for years] demand return of the
files once she discovered [in her view that they] included non-Nationwide client
information." Id., citing Cedar Creek Mall Properties, L.L.C. v. Krone, 8th Dist. No.
104863, 2017-Ohio-7884; Devil's Advocate, LLC v. Zurich Am. Ins. Co., Case No. 1:13-cv-
1246, 2014 U.S. Dist. Lexis 146449 (E.D.Va. Oct. 10, 2014).
{¶ 40} On our de novo review, we find no error in that assessment that Ms. Forbes
effectively (in both senses of the word) consented to the transfer of the files at issue. Given
her description of her own efforts to prepare the files for Nationwide to pick up, as well as
her attorney's notification to Nationwide "to confirm that Ms. Forbes will make
Nationwide's files and customer information available for pick up on Wednesday, June 11,
2013 at 9:00 a.m. at her former Nationwide agency location," Ms. Forbes's conversion claim
No. 19AP-220 17
fails as a matter of law. See Forbes Deposition, Ex. 4; Devil's Advocate at * 25-28 (implied
consent or assent makes the taking not wrongful and negates conversion claim). We
overrule Ms. Forbes's second assignment of error.
{¶ 41} Having overruled both of Ms. Forbes's assignments of error, we affirm the
judgment of the trial court granting summary judgment in Nationwide's favor.
Judgment affirmed.
BRUNNER and BEATTY BLUNT, JJ., concur.
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