Essig v. Blank

[Cite as Essig v. Blank, 2021-Ohio-2602.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
ELIZABETH ESSIG :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-9
:
v. : Trial Court Case No. 2020-CV-82
:
JAMES E. BLANK, D.D.S. : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of July, 2021.
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RICHARD E. MAYHALL, Atty. Reg. No. 0030017, 20 South Limestone Street, #120,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
DAVID J. HEINLEIN, Atty. Reg. No. 0040677, 140 East Town Street, Suite 1015,
Columbus, Ohio 43215
Attorney for Defendant-Appellant
.............
HALL, J.
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{¶ 1} James E. Blank appeals from the trial court’s judgment entry in favor of
plaintiff-appellee Elizabeth Essig following a bench trial on her breach-of-contract claim
against him.
{¶ 2} Blank advances seven assignments of error. First, he contends the trial court
erred in overruling his summary-judgment motion against Essig. Second, he claims the
trial court erred in finding that the statute of frauds did not apply. Third, he argues that the
trial court erred in finding promissory estoppel inapplicable. Fourth, he asserts that the
trial court erred “in not providing analysis or reasoning” when overruling his summary-
judgment motion. Fifth, he maintains that the trial court erred in finding that Essig satisfied
her burden of proof at trial. Sixth, he contends the trial court erred “in not allowing any
discussion of the merits, or lack thereof, regarding [a] putative dental malpractice claim”
by Essig. Seventh, he claims the trial court erred in overruling his motion for a directed
verdict at the close of Essig’s case.
{¶ 3} The record reflects that Blank is a dentist. Blank was a personal friend of
Essig’s husband and to some extent Essig. Blank and the Essigs were acquainted
through the local “Christian community,” and the two men served together on the
Emmanuel Christian Academy Board.
{¶ 4} In June 2017, Essig signed an informed-consent document, and Blank
performed a dental procedure on her. Essig experienced an adverse outcome from the
procedure. After she complained to Blank, he refunded her payment. Essig nevertheless
contemplated filing a malpractice lawsuit against Blank. She sent him a “180-day letter”
to extend the statute of limitation. Essig and her husband subsequently had several
discussions with Blank about reaching a settlement. According to Essig, Blank orally
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agreed to pay her $75,000. For his part, Blank acknowledged negotiating with Essig and
her husband. He denied, however, that the parties orally had agreed to his payment of
any specific amount of money. Blank claimed no oral contract existed. After Blank failed
to pay Essig $75,000, she filed the present lawsuit alleging breach of an oral contract and
seeking enforcement of the settlement agreement. The parties subsequently filed
competing summary-judgment motions. The trial court overruled both motions. It rejected
Blank’s argument that the statute of frauds applied. It also found a genuine issue of
material fact as to whether the parties had entered into an enforceable oral contract. The
matter proceeded to a December 10, 2020 bench trial at which the trial court heard
testimony from Blank, Essig, and Essig’s husband. Based on the testimony and exhibits
presented, the trial court entered judgment in favor of Essig on January 12, 2021. The
trial court’s entry included detailed findings and analysis of the evidence presented. The
trial court found that Essig had proven the existence of an enforceable oral contract and
that neither the statute of frauds nor the doctrine of accord and satisfaction applied.
{¶ 5} In his first assignment of error, Blank contends the trial court erred in
overruling his summary-judgment motion. He argues that he was entitled to judgment as
a matter of law based on the statute of frauds. He advances three arguments in support.
First, he claims the trial court erred in finding that the statute of frauds involved a question
of fact rather than a question of law. Second, he asserts that the statute of frauds applied
because the settlement agreement could not be performed within one year. Third, he
maintains that the statute of frauds applied because the alleged oral agreement required
him personally to satisfy a debt of his limited-liability company.
{¶ 6} In relevant part, the statute of frauds requires an agreement to be in writing
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and to be signed by the party against whom enforcement is sought if it obligates the
defendant “to answer for the debt * * * of another person” or if it is one “that is not to be
performed within one year from the making thereof.” See R.C. 1335.05. “[W]hether there
has been compliance with the requirements of the [s]tatute of [f]rauds is a question of law
where the facts are not in dispute.” Ruhe v. Hemmelgarn, 2d Dist. Darke No. 96-CA-1423,
1997 WL 476687, *6 (Aug. 22, 1997). But whether the statute of frauds applies to bar an
alleged oral agreement often requires resolving genuine issues of material fact. See, e.g.,
Willoughby Supply Co. v. Inghram, 2015-Ohio-952, 30 N.E.3d 230, ¶ 22 (11th Dist.) (“The
determination of whether an oral promise to answer for another’s debt exists, and is
outside the Statute of Frauds, is a question of fact.”); Bond v. Phillips, 6th Dist. Lucas No.
L-10-1197, 2010-Ohio-5640, ¶ 15 (“Whether an agreement is an original undertaking, not
subject to the statute of frauds, or collateral, requiring a writing, is generally a question of
fact.”).
{¶ 7} Blank contends the trial court erroneously treated the statute-of-frauds issue
as involving a question of fact rather than a question of law when denying him summary
judgment. It appears to us, however, that the trial court simply found no genuine issue of
material fact and resolved the statute-of-frauds issue as a matter of law, finding that it did
not apply. The trial court then found genuine issues of material fact about whether an oral
settlement agreement existed. (July 9, 2020 Entry at 1.) Despite its summary-judgment
ruling, the trial court revisited the statute-of-frauds issue again at trial after hearing all of
the evidence. Based on the testimony presented, it explained why the parties’ oral
agreement was not required to be in writing. (January 12, 2021 Entry at 10-11.) We see
no error in the trial court’s treatment of the issue.
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{¶ 8} Blank next argues that the statute of frauds did apply because the settlement
agreement could not be performed within one year. He notes that the settlement was in
lieu of Essig’s pursuing a malpractice claim. That being so, he reasons: “[T]he statute of
limitations was one year (plus an additional 180-day extension), so [the] oral agreement
to pay could not have been completed within a year plus six months * * * inasmuch as the
claimed oral agreement was contingent upon not bringing a suit within that 18 month
period. There was no possibility in law or fact that full performance of both parties could
have been completed within a year.” (Appellant’s brief at 7.)
{¶ 9} Upon review, we are unpersuaded by Blank’s argument. The statute of frauds
applies when an agreement cannot be performed within one year or when the parties did
not intend an agreement to be performed within one year. Olympic Holding Co. v. ACE
Ltd., 122 Ohio St. 3d 89, 2009-Ohio-2057, 909 N.E.2d 93, ¶ 48. Here Blank argues that
the oral settlement agreement could not be “performed” prior to expiration of the
underlying statute of limitation on a malpractice claim. We reject this argument for at least
two independent reasons. First, Blank’s argument about expiration of the statute of
limitation is not supported by the record. Blank performed the procedure on Essig in June
2017. (Trial Tr. at 9.) Essig reported having problems the following day, and she reported
complications that continued to bother her. (Id. at 11.) It appears likely then that the statute
of limitation began to run at the time of the procedure or shortly thereafter. Essig testified
that the oral agreement was reached in November 2018, roughly 17 months after her
procedure. (Trial Tr. at 33, 40-41.) Consequently, it does not appear that Blank would
have had to wait more than a year from the date of the settlement agreement for the
statute of limitation to expire.
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{¶ 10} Second, and more importantly, we see no reason why the parties would
have needed to wait for the malpractice statute of limitation to expire for the oral
agreement to be considered “performed.” Essig agreed not to pursue a malpractice claim
in exchange for $75,000 from Blank. Although Blank had to make financial arrangements
to pay the money, the record does not reflect that it was impossible for him to pay her
within one year of the settlement agreement. Even if the malpractice statute of limitation
had not yet expired, the terms of the oral contract precluded Essig from filing suit. If she
sued Blank anyway, he would have a cause of action for breach of contract. On the record
before us, we see no significance in the expiration or non-expiration of the malpractice
statute of limitation in relation to whether the oral agreement could have been performed
within one year.
{¶ 11} In a final argument, Blank contends the oral agreement sought to hold him
personally responsible for a debt of his limited-liability company. He cites the statute of
frauds’ requirement that an agreement must be in writing if it obligates a party “to answer
for the debt * * * of another person.” R.C. 1335.05.
{¶ 12} Once again, we find Blank’s argument to be without merit. Essig’s “180-day
letter” appears to indicate that she was considering a lawsuit against Blank personally
and against his dental practice.1 Blank admitted that he and Essig had discussions about
her settling the matter “directly with [him].” (Trial Tr. at 14.) For her part, Essig testified
that Blank agreed to pay her $75,000 to settle the matter. (Id. at 24, 40-41.) Essig’s
husband also testified that the parties agreed to a $75,000 payment. (Id. at 47.) Therefore,
1 The 180-day letter was directed to “Advanced Dentistry Springfield by James E. Blank,
DDS, LLC aka James E. Blank, DDS, LLC dba Advanced Dentistry by James Blank &
James E. Blank, DDS.” (Emphasis added.)
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the record supports a finding that Blank entered into the settlement on his own behalf. In
fact, the trial court explicitly found that the settlement was not for a debt of Blank’s
business. Based on the evidence presented, the trial court reasoned:
* * * The Court finds that Defendant’s promise to pay $75,000 to
plaintiff was not for the debt of his business entity. * * *
It could be argued that Defendant’s promise was for the debt of his
business entity because a settlement agreement would serve to protect his
professional reputation and ultimately his business from exposure to a
lawsuit. Securing this protection, however, was not the driving force behind
his pursuit of a settlement agreement. On the contrary, it was merely a
residual benefit of his primary motivation which was supporting and
compensating Plaintiff because of their friendship and his honorable
principles.
Plaintiff was much more than a patient to Defendant. Defendant was
friends with Plaintiff and her husband. They were all part of the local
Christian community. Mr. Essig and Defendant served together on the
Emmanuel Christian Academy Board. Mr. Essig testified that he and
Defendant were more than acquaintances, and characterized their
relationship as “friends.” Defendant testified that he wanted to support
Plaintiff. Defendant even texted, “I pray for your health and healing almost
daily . . . .” Defendant engaged in settlement negotiations because of
particular concern for her and his virtuous nature, not because his business
owed her anything. The fact that he was contemplating paying out of his
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business savings is merely evidence of his logistical concerns and does not
negate the overwhelming evidence that his promise to Plaintiff was to
answer for his own debt.
Because Defendant’s promise was not to answer for the debt of his
business entity, but for his personal debt, the statute of frauds does not
apply, and therefore it does not render the oral contract unenforceable.
(January 12, 2021 Entry at 11.)
{¶ 13} In opposition to the trial court’s conclusion, Blank cites Sliman’s Printing,
Inc. v. Velo, Internatl., 5th Dist. Stark No. 2004CA00095, 2005-Ohio-173. In Sliman, the
Fifth District found that the president of a limited-liability company was not personally
responsible for a debt of the company where the president did not sign a writing
guaranteeing payment and only had promised that “his company” would pay the debt. Id.
at ¶ 38, 42. Sliman is distinguishable. Unlike Sliman, the trial court found that the
agreement between Essig and Blank did not involve a debt of the dental practice.
Because Blank has not demonstrated error in that determination, Sliman has no
applicability. The first assignment of error is overruled.
{¶ 14} In his second assignment of error, Blank again claims the trial court erred
in finding that the statute of frauds did not apply to the parties’ settlement agreement. In
the body of his argument, he raises various issues. Blank first asserts that Essig gave
informed consent to the dental procedure and that his refund of her payment constituted
an accord and satisfaction. Under these circumstances, he suggests that he had no
reason to agree to pay Essig anything. The trial court noted, however, that Blank had
admitted participating in settlement negotiations, implicitly suggesting “that there was
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some issue.” (Trial Tr. at 26.) At best, Blank’s assertions about informed consent and
accord and satisfaction constitute circumstantial evidence going to the credibility of
Essig’s testimony, which was a matter for the trial court to consider in the exercise of its
discretion.2
{¶ 15} Blank next cites two cases for the proposition that oral settlement
agreements are not enforceable. In the first case, First Merit Bank, N.A. v. Inks, 138 Ohio
St.3d 384, 2014-Ohio-789, 7 N.E.3d 1150, the Ohio Supreme Court held that “a party
cannot assert an oral agreement pertaining to an interest in land in an effort to defeat a
judgment entered pursuant to a written contract.” Id. at ¶ 3. The rationale for this holding
was that the statute of frauds precludes oral agreements involving an interest in land. Id.
at ¶ 25-26. The dispute between Essig and Blank does not involve an interest in land.
Therefore, the Inks decision has no applicability. The second case upon which Blank
relies is Hurd v. Wheeling & L.E.R. Co., 6 Ohio Dec. 545, 4 Ohio N.P. 404 (1897). In that
common pleas court decision, the plaintiff in a wrongful-death action settled with the
defendant railroad company without the knowledge or consent of plaintiff’s attorneys. The
attorneys subsequently sued the railroad company, seeking fees owed to them by the
plaintiff. The common pleas court determined that the lawsuit actually sounded in tort for
fraud rather than in contract. Id. at *4. The court also determined that a breach-of-contract
claim would be barred by the statute of frauds because the railroad would be promising
to pay the attorney-fee debt of the wrongful-death plaintiff. Id. In the present case, Blank
2 Parenthetically, we note that the trial court addressed the accord-and-satisfaction issue
and found the doctrine inapplicable. It reasoned: “The Court finds that there is no evidence
that Plaintiff had reasonable notice that the refund was intended to be in full satisfaction
of the impending medical/dental malpractice claim.” (January 12, 2021 Entry at 9.)
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has not demonstrated any error in the trial court’s holding that the agreement between
Essig and Blank did not involve a debt of the dental practice. As a result, Hurd is
distinguishable.
{¶ 16} Finally, Blank contends the evidence presented at trial does not support a
finding that he agreed to pay Essig $75,000. In particular, he takes issue with certain text
messages that Essig used to help establish the existence of a contract. Blank argues that
the text messages are not complete enough to constitute an enforceable written contract
that overcomes the statute of frauds. We agree. But Essig did not rely on the text
messages to establish the existence of a written contract. Rather, she relied on them as
corroborating evidence that inferentially supported her claim of an oral contract. To the
extent that Blank contends Essig’s evidence—including her testimony and the text
messages—failed to establish a meeting of the minds, we will address his argument
under the fifth assignment of error, which challenges whether Essig sustained her burden
of proof at trial. The second assignment of error is overruled.
{¶ 17} In his third assignment of error, Blank contends the trial court erred in finding
“that promissory estoppel did not exist to preclude [Essig’s] claim.” In the body of his
argument, however, he demonstrates that he does not actually believe promissory
estoppel acted as a defense to preclude Essig’s claim. Despite the wording of his
assignment of error, he reasons that Essig herself cannot circumvent his statute-of-frauds
defense by relying on the alternative theory of promissory estoppel to support her claim.
{¶ 18} Upon review, we find the foregoing issue to be moot. As a threshold matter,
Essig did not allege promissory estoppel in her complaint, and the trial court did not
address promissory estoppel in its judgment. In any event, Essig had no need to rely on
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promissory estoppel. As explained elsewhere in this opinion, the trial court correctly found
that an enforceable oral contract existed and that the statute of frauds did not apply.
Because Essig can enforce the oral contract, we need not determine whether she could
have used promissory estoppel to avoid the statute of frauds. The third assignment of
error is overruled.
{¶ 19} In his fourth assignment of error, Blank asserts that the trial court erred “in
not providing analysis or reasoning” when it overruled his summary-judgment motion
addressing the statute of frauds.
{¶ 20} In overruling Blank’s motion, the trial court concluded that “the statute of
frauds does not appear to be applicable to the facts of this case and, as such, the
purported agreement need not be in writing to be legally enforceable.” (July 9, 2020
Entry.) Despite this ruling, the trial court considered the applicability of the statute of
frauds again after hearing all of the evidence at trial. In its final judgment entry, the trial
court provided findings and analysis regarding its determination that the statute of frauds
did not apply. (January 12, 2021 Entry at 10-11.)
{¶ 21} Under these circumstances, we find Blank’s assignment of error to be
unpersuasive. It is questionable whether Blank even can challenge the trial court’s
summary-judgment ruling when the same issue was addressed at trial. In any event, the
trial court had no obligation to issue findings of fact or conclusions of law in connection
with its summary-judgment ruling. (Citations omitted.) Huber v. Mues, 2d Dist. Clark No.
2011-CA-75, 2012-Ohio-2540, ¶ 8. Moreover, the trial court did provide analysis of the
statute-of-fraud issue in its final judgment. The fourth assignment of error is overruled.
{¶ 22} In his fifth assignment of error, Blank claims the trial court erred in finding
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that Essig satisfied her burden of proof at trial. In particular, he challenges the trial court’s
decision to credit several “hand-picked” text messages as indicative of an oral contract
while “blatantly ignor[ing] the fact that those hand-picked texts contained no confirmed
acceptance of the specific dollar amount claimed by the plaintiff.” Blank also faults the
trial court for finding an oral agreement for him to pay $75,000 even though Essig never
requested that amount in writing.
{¶ 23} “The ‘standard of review following a civil bench trial is whether the trial
court’s judgment [was] against the manifest weight of the evidence.’ ” Somerfield v. Budz,
2d Dist. Montgomery No. 28437, 2019-Ohio-4804, ¶ 9, quoting Downtime Rebuild, L.L.C.
v. Trinity Logistics, Inc., 2019-Ohio-1869, 135 N.E.3d 1253, ¶ 12 (1st Dist.). “Accordingly,
a judgment supported by competent, credible evidence should not be reversed on
appeal.” Id., citing Huntington Natl. Bank v. Miller, 10th Dist. Franklin No. 14AP-586,
2016-Ohio-5860, ¶ 13, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279,
280, 376 N.E.2d 578 (1978). “An appellate court applying this standard ‘is guided by a
presumption that the [trial court’s] findings of [fact were] correct.’ ” Id., citing Huntington
Natl. Bank at ¶ 13, citing Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 77,
80, 461 N.E.2d 1273 (1984). “Typically, ‘an appellate court should not disturb a trial court’s
findings of fact if the record contains competent, credible evidence to support those
findings.’ ” Parker v. Newmark Homes, Inc., 2d Dist. Montgomery No. 25686, 2013-Ohio-
4402, ¶ 20, quoting Johnson v. Albers, 1st Dist. Hamilton No. C-110628, 2012-Ohio-1367,
¶ 17, citing C.E. Morris at syllabus.
{¶ 24} With the foregoing standards in mind, we see no error in the trial court’s
judgment. The preponderance of the competent, credible evidence supported a finding
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that Essig and Blank entered into an oral settlement agreement obligating him to pay her
$75,000. At trial, Essig and her husband both testified that Blank agreed to pay the
$75,000. For his part, Blank admitted engaging in settlement negotiations but denied that
he had agreed to pay any particular amount. However, Essig also admitted into evidence
several text messages between the parties. These messages supported a reasonable
inference that some amount previously had been agreed upon. Otherwise, Blank would
not have been discussing how to get the money to pay Essig. Given Blank’s denial that
any amount had been agreed upon, the trial court reasonably accepted the amount to
which Essig and her husband testified.
{¶ 25} The trial court thoroughly analyzed the evidence pertaining to an oral
contract. It found all three witnesses credible (Essig, her husband, and Blank). Ultimately,
it concluded that the text messages “tip[ped] the scale” in favor of Essig. Addressing those
messages, the trial court reasoned:
Plaintiff texted, “We agreed last December you said you had that
amount you and your wife have agreed upon . . . .” Defendant did not
respond to this text message by denying that he had agreed to the $75,000,
but instead raised concerns about the deadline Plaintiff placed on the
demand and from which account he would withdraw the funds. He texted,
“The timeline is hard for me unless I take from family savings. I have about
a third and am using business savings as I am able . . . .” He also texted, “I
don’t have the funds for that date . . . . If you are asking me to use retirement
money I will see if I can.” It would appear from these text messages that
Defendant accepted the $75,000 offer and that any uncertainty pertained,
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not to whether or not he would pay that amount, but only to his
aforementioned logistical concerns, those being the source of funds and
timeline for payment. As such, these exchanges tip the scales in favor of
Plaintiff.
Plaintiff later texted, “I have grown weary and want to complete our
good faith oral agreement.” Defendant did not respond to this text message.
The Court would think that, had there been no agreement, Defendant would
have responded by denying the existence of one. His failure to respond
could therefore be construed as an admission that an oral agreement had
been reached. As such, this text message tips the scales in favor of Plaintiff.
Defendant responded to Plaintiff’s demand by texting, “I have
communicated these things to my attorney to create a brief document.”
Plaintiff then texted, “Please send me the document by the end of the day
and the term so I can sign it and email it back to you today.” Defendant
responded, “I don’t have the funds for that date . . . . Or any paperwork
today.” This text exchange could be construed in favor of Plaintiff as simply
the parties wanting to reduce to writing their agreement. In other words, it
appears that documents would be executed to memorialize a contract into
which they already had entered. On the other hand, they could also be
construed in favor of Defendant as his desire to have his attorney review
terms and assent to them as a prerequisite to entering into an agreement.
Accordingly, this text exchange does not tip the scales one way or the other.
Defendant texted to Mr. Essig, “I am not able to meet her demand
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but will keep pressing with what I can, based on the update I gave you last
time we talked. My attorney has the info.” Mr. Essig responded, “Jim, I
appreciate the progress you’ve made and you making contact with Betsy.
John.” This text exchange could be construed in favor of Defendant
because it appears, on the surface, to be a rejection of Plaintiff’s offer.
Furthermore, had there already been an agreement made on November 15,
2018, Mr. Essig would most likely have responded to this text on December
2, 2018 by reminding Defendant of the same and holding him accountable
to it. He did not. However, upon further review, it is more probable that
Defendant was not rejecting Plaintiff’s $75,000 offer, but rather expressing
an inability to satisfy her demand that it be paid by a certain date. This
interpretation is consistent with Defendant texting, “. . . will keep pressing
with what I can . . . .” A reasonable interpretation of this text is that
Defendant would continue “pressing” to gather the funds for Plaintiff by a
certain date. As such this text exchange tips the scales in favor of Plaintiff.
The Court finds that the substance of all these text exchanges tips
the scales in favor of Plaintiff.
(January 12, 2021 Entry at 6-7.)
{¶ 26} On appeal, Blank points out that the foregoing text messages omitted any
“confirmed acceptance” of the $75,000 amount claimed by Essig. Although that is true,
the text exchanges support a reasonable inference that the parties had agreed to some
amount. The only witnesses to testify as to an agreement for a specific dollar amount
were Essig and her husband. Therefore, the trial court reasonably accepted their
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testimony that the oral agreement was for that amount. Blank also complains that Essig
“hand-picked” a few text exchanges “out of hundreds of texts.” Of course, Essig was free
to present any evidence she desired. If Blank believed her texts were taken out of context
or were not representative of the parties’ entire exchange, he was free to cross-examine
her on the matter or to present additional text messages himself. The fact that Essig only
offered into evidence some text messages was not error. Finally, Blank points out Essig’s
admission that she knew the importance of written contracts based on her career in real
estate. But the parties’ agreement did not involve an interest in land and, therefore, did
not need to be in writing for the reasons set forth elsewhere in this opinion. The fifth
assignment of error is overruled.
{¶ 27} In his sixth assignment of error, Blank contends the trial court erred “in not
allowing any discussion of the merits, or lack thereof, regarding [a] putative dental
malpractice claim” by Essig.
{¶ 28} Blank reasons that the strength or weakness of any potential malpractice
claim was relevant to whether he actually agreed to pay Essig $75,000. In essence, he
argues that Essig had no conceivable malpractice claim because he did nothing wrong
and, furthermore, that she had signed an informed consent form. Under these
circumstances, Blank maintains that there was no reason why he, or any dentist, would
have offered any settlement amount. Therefore, he asserts that the trial court erred in
precluding him from examining Essig about her informed consent and allegations of
malpractice.
{¶ 29} Upon review, we find Blank’s argument to be unpersuasive. Limiting cross-
examination is within a trial court’s discretion based on the facts of a case. Restrictions
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may be imposed due to various concerns, including “confusion of the issues” and the
presentation of “repetitive testimony, or marginally relevant interrogation.” (Citation
omitted.) Weiner v. Kwait, 2d Dist. Montgomery No. 19289, 2003-Ohio-3409, ¶ 28
{¶ 30} Here Blank’s attorney attempted to cross-examine Essig about her belief
that Blank had committed malpractice. Essig’s counsel objected on the basis of
relevance. Blank’s attorney then argued, as he does above, that without a factually viable
malpractice claim there would have been no reason for him to agree to a settlement. At
that point, Essig’s counsel withdrew the objection, and the trial court agreed to allow
“some limited questions on this.” (Trial Tr. at 26.) In the pages of cross-examination that
follow, we have not found any instances where the trial court precluded Blank’s attorney
from questioning Essig about her allegations of malpractice. In opposition to this
conclusion, Blank’s cites only discussion between counsel and the trial court that occurred
before Essig withdrew her objection and the trial court allowed the questioning to proceed.
Given that Essig withdrew the objection and questioning continued, we see no error. The
sixth assignment of error is overruled.
{¶ 31} In his seventh assignment of error, Blank claims the trial court erred in
overruling his motion for a directed verdict at the close of Essig’s case. He argues that
she failed to establish a meeting of the minds on the elements of a claim for breach of an
oral contract. We reject this argument based on our resolution of Blank’s fifth assignment
of error, where we upheld the trial court’s finding that Essig had proven breach of an oral
contact by a preponderance of the evidence. Our analysis of the fifth assignment of error
is equally applicable here. Because Essig presented evidence from which a trier of fact
could conclude that Blank breached an oral contract, the trial court did not err in overruling
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the directed-verdict motion. The seventh assignment of error is overruled.
{¶ 32} Having overruled each of Blank’s assignments of error, we affirm the
judgment of the Clark County Common Pleas Court.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Richard E. Mayhall
David J. Heinlein
Hon. Douglas M. Rastatter