Reliant Serv. MJF, L.L.C. v. Brown

[Cite as Reliant Serv. MJF, L.L.C. v. Brown, 2025-Ohio-5364.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

RELIANT SERVICES MJF, LLC, :

Appellant and Cross-Appellee, : CASE NO. CA2024-11-081

: OPINION AND

- vs - JUDGMENT ENTRY

: 12/1/2025

PAUL BROWN, :

Appellee and Cross-Appellant. :

CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS

Case No. 22CV095017

Cooper Elliott, and Jeffrey T. Kenney, for appellant and cross-appellee.

Thomas G. Eagle, for appellee and cross-appellant.

___________

OPINION

M. POWELL, J.

{¶ 1} Appellant, Reliant Services MJF, LLC (Reliant), appeals a decision of the

Warren County Court of Common Pleas granting judgment in favor of appellee, Paul

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Brown, on Reliant's claim for breach of contract.1 Brown cross-appeals the trial court's

decision granting summary judgment in favor of Reliant on Brown's counterclaims for

abuse of process and tortious interference with a contract and business relationship.

Brown is an independent contractor who formerly performed work for Reliant.

{¶ 2} Reliant is a construction staffing company that specializes in providing

punch-list services to home builders. Punch-list services is the process of completing

finishing work on newly constructed homes, including drywall repairs, paint touchups, and

door adjustments. Reliant retains independent contractors to perform the punch-list

services for its home-builder clients. Reliant's main client is Ryan Homes. As pertinent

here, Reliant contracted with Ryan Homes for work, and then selected one or more of its

independent contractors to perform the requested work. Ryan Homes would then tell the

independent contractors where to go and what punch-list tasks to perform.

{¶ 3} To protect its business and prevent its independent contractors from

competing directly with Reliant or performing punch-list services directly for home

builders, Reliant requires its independent contractors to sign noncompete covenants. The

record shows that Reliant originally used a "Non Compete Form." However, after the Non

Compete Form was found unenforceable by a Hamilton County court in 2017, Reliant

adopted a new Independent Contractor Agreement that includes noncompetition and

nonsolicitation clauses.

{¶ 4} Brown began working as one of Reliant's punch-list independent

contractors in May 2013. Prior to that, Brown had worked as a handyman for residential

property owners for 25 years, providing handyman and punch-list services. On May 16,

1. Reliant was originally founded by Michael Meyer under the name Reliant Services MM, LLC. The

company's name changed to Reliant Services MJF, LLC when Matthew John Fenik purchased it in 2021.

For purposes of this appeal, both entities refer to the same company and will be referred to as Reliant.

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2013, Brown signed the Non Compete Form, which provided, "This form states that Paul

Brown will not compete nor solicit, seek, or directly enter into contracts with Ryan Homes,

Drees Homes or any customers established into a subcontractor agreement with Reliant

Services LLC." Brown also signed an Independent Contractor Agreement for Services

(the "Contract") which was back-dated to May 16, 2013. The Contract's noncompete

clause provided that in light of "the highly competitive nature of" Reliant's business, Brown

agreed he would not compete with Reliant while working as a Reliant independent

contractor or for a period of one year after termination of his status as a Reliant

independent contractor. Matthew Fenik acquired Reliant in October 2021. The acquisition

included Reliant's various agreements with its independent contractors, including Brown's

Contract and Non Compete Form .

{¶ 5} In September 2021 and while still working for Reliant, Brown formed his own

company, Brown Building Services, LLC ("BBS"). BBS provided the same punch-list

services that Brown performed for Ryan Homes on behalf of Reliant. The following month,

Brown obtained a vendor's license with Ryan Homes. Thereafter, while still working as a

Reliant independent contractor, Brown and his company began providing punch-list

services for Ryan Homes. Brown's association with Reliant terminated in October 2021.

Reliant discovered that BBS was providing punch-list services for Ryan Homes and

confronted Brown. Brown denied he was competing with Reliant. Subsequently, Reliant

hired an investigator who confirmed that Brown was providing punch-list services for Ryan

Homes.

{¶ 6} On March 25, 2022, Reliant filed a complaint against Brown for breach of

contract. Attached to the complaint were the 2013 Contract and Non Compete Form.

Reliant requested a temporary restraining order ("TRO") and a preliminary injunction

against Brown. On March 28, 2022, a magistrate conducted a hearing on Reliant's TRO

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motion. Brown was present at the hearing but was not represented by counsel. The

magistrate granted a TRO subject to Reliant posting a $1,000 bond pursuant to Civ.R.

65(C). Brown made no objection to the bond. Among other things, the TRO enjoined

Brown from "directly or indirectly engaging in any competitive business with [Reliant]

within 100 miles of Cincinnati, Ohio."

{¶ 7} A hearing on Reliant's motion for a preliminary injunction was held on April

26, 2022. The magistrate heard testimony from Brown, Fenik (Reliant's sole managing

partner), and Mark Maier (general manager for NVR, Inc., dba Ryan Homes). During the

hearing, Reliant introduced Exhibit 8, consisting of the Contract, the Non Compete Form,

and a W-9 form. The Contract was an eight-page document and missing its page four.

Brown admitted signing the Non Compete Form. Brown acknowledged his signature was

on the last page of the Contract and that he signed that page because he was told to do

so by Reliant's prior owner, but denied any recollection of having previously seen the

actual whole Contract. Brown suggested his signature had been forged or superimposed

upon the signature line. Brown also pointed out that his address on the Contract reflected

where he lived after March 26, 2014, however, he did not reside at that address on May

16, 2013, the date on the Contract.

{¶ 8} Fenik testified that Brown's Contract was among the electronic documents

he obtained from Reliant's prior owner when he acquired Reliant in October 2021, and

identified the Contract as part of Exhibit 8. Fenik testified that he referenced Brown's

Contract when he confronted Brown about his working directly with Ryan Homes in

competition with Reliant and that Brown acknowledged its existence. Fenik also testified

that his understanding was that the Contract's noncompete clause was a revision of the

Non Compete Form that was implemented after the Non Compete Form was challenged

in court and found unenforceable.

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{¶ 9} Mark Maier, Ryan Homes' general manager, testified that Ryan Homes'

direct relationship with Brown had no effect on the amount of work for which Ryan Homes

contracts with Reliant.

{¶ 10} Brown objected to the admission of the Contract included in Exhibit 8 on the

grounds it was a copy and not the original contract (citing Evid. R. 1002 and 1003), it was

incomplete (missing its page four), and it was back-dated. The magistrate deferred ruling

on the admissibility of Exhibit 8, subject to Reliant producing Brown's original Contract

within seven days. On April 26, 2022, the magistrate journalized an order stating that

Reliant "shall have until close of business on May 3, 2022 to provide notice to this court

and defense counsel whether the original copy of the 'Independent Contractor Agreement

for Services' at issue in this matter can be located. If the original can be found, such

original shall be provided to the Court as a substitution for Plaintiff's Exhibit 8 and a copy

of the original shall be provided to Defense counsel." The magistrate's order further

modified the TRO, thereby enjoining Brown from only directly or indirectly engaging in

business "with Ryan Homes. [Brown] may otherwise perform services for any other

companies, organizations, entities, etc." Brown did not file a motion to set aside the

magistrate's order pursuant to Civ.R. 53(D).

{¶ 11} On April 27, 2022, during the pendency of the magistrate's decision on the

motion for preliminary injunction, Brown answered Reliant's complaint and

counterclaimed, alleging abuse of process and tortious interference with a contract and

business relationship.

{¶ 12} On May 2, 2022, Reliant filed a Notice of Compliance that included the

original Non Compete Form and the complete original Contract. The notice was

accompanied by affidavits from Fenik and Mark Meyer, Reliant's prior owner. Meyer

averred that the Contract was implemented sometime after 2017 when the Hamilton

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County Common Pleas Court ruled that the Non Compete Form was unenforceable.

Thereafter, Meyer required Reliant's independent contractors to sign the Contract. Meyer

further averred that he witnessed Brown sign the Contract and that he advised him it

would be back-dated to May 16, 2013, the day Brown originally contracted with Reliant.

Fenik's affidavit merely recited his testimony during the preliminary injunction hearing

regarding his acquisition of Reliant, which included Brown's Contract. A copy of Brown's

original Contract was attached to Fenik's affidavit as an exhibit and identified. Brown filed

objections to the Fenik and Meyer affidavits, arguing they were testimonial in nature, were

not subject to cross-examination, and were inadmissible hearsay.

{¶ 13} On May 6, 2022, the magistrate issued a decision granting Reliant's motion

for a preliminary injunction. Addressing the admissibility of Brown's Contract, the

magistrate held that Meyer's affidavit would not be considered because he was not a

witness at the preliminary injunction hearing and therefore, was not subject to cross-

examination. However, the magistrate considered Fenik's affidavit as he was a witness

at the hearing subject to cross-examination. The magistrate ruled that Brown's original

Contract would be supplemented into the record. The magistrate further observed, "all

parties appear to agree the 'Non Compete Form' is not a binding or enforceable covenant

not to compete and is, therefore, irrelevant to these proceedings but for the fact it was

originally provided to and signed by [Brown] on or about May 16, 2013." The preliminary

injunction issued by the magistrate included an order enjoining Brown "from directly or

indirectly engaging in any competitive business with [Reliant] with the construction

company known as Ryan Homes."

{¶ 14} Brown filed objections to the magistrate's decision granting Reliant a

preliminary injunction. Brown also objected to the magistrate's consideration of Fenik's

affidavit and the substitution of the original Contract for Exhibit 8. On December 12, 2022,

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the trial court dissolved the preliminary injunction, finding that Reliant had "not met the

burden of clear and convincing evidence necessary to justify an injunction" because

"[n]othing in the evidence presented to date indicates any harm is irreparable." The trial

court did not address the admissibility of the Contract or Fenik's affidavit.

{¶ 15} Reliant subsequently moved for summary judgment on Brown's

counterclaims. On April 1, 2024, the magistrate granted Reliant's motion and dismissed

Brown's counterclaims for abuse of process and tortious interference with a contract and

business relationship. Brown filed objections to the magistrate's decision. On May 20,

2024, the trial court overruled Brown's objections and adopted the magistrate's April 1,

2024 decision as the court's order.

{¶ 16} A bench trial on Reliant's breach-of-contract claim was held before the

magistrate on July 9, 2024. At the outset of the trial, the magistrate noted that the parties

had agreed that the transcript of the preliminary injunction hearing and the exhibits

admitted during that hearing, subject to pending objections, would be considered for

purposes of the trial. Brown renewed his objection to the Contract. Over Brown's

objection, the Contract was admitted into evidence.

{¶ 17} On August 12, 2024, the magistrate issued a decision dismissing Reliant's

breach-of-contract claim and granting judgment in favor of Brown. The magistrate found

that the Contract's noncompete clause was unenforceable because it placed an undue

hardship on Brown. The magistrate also found that the lack of geographical limitations in

the noncompete clause made it unduly restrictive. Moreover, there was no evidence that

Brown learned his trade through Reliant or that Reliant's proprietary information or trade

secrets were implicated by the punch-list services Brown performed through BBS.

{¶ 18} Reliant and Brown each filed objections to the magistrate's decision.

Reliant's objections centered on the 2013 Non Compete Form, arguing it was enforceable

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because it only sought to limit Brown from working for Ryan Homes. Brown's objection

centered on the Contract, challenging its admission into evidence, and on whether he

was entitled to damages for losses incurred while he was prohibited from working during

the time the TRO and preliminary injunction were in effect.

{¶ 19} On October 29, 2024, the trial court overruled both parties' objections and

adopted the magistrate's decision as follows: "judgment is hereby rendered in favor of

[Brown] on [Reliant's] sole cause of action for breach of contract. [Reliant's] claim is

dismissed on the merits and [Brown] is entitled to release of the $1,000 bond posted by

[Reliant] under Civ.R. 65(C)."

{¶ 20} Reliant Services now appeals, raising one assignment of error. Brown

cross-appeals, raising two cross-assignments of error.

{¶ 21} Reliant's Assignment of Error No. 1:

THE TRIAL COURT ERRED BY NOT ENFORCING THE

VALID NON-COMPETE AGREEMENT BETWEEN THE

APPELLANT AND THE APPELLEE.

{¶ 22} Reliant challenges the trial court's dismissal of its breach-of-contract claim,

arguing the court erred in finding that its noncompete agreement places an undue

hardship on a former independent contractor and is, therefore, unenforceable. Reliant

asserts that its noncompete agreement is very limited in scope because it only seeks to

prevent Brown from directly working for Ryan Homes.

{¶ 23} Brown challenges the validity of the Contract's noncompete clause.

Although Reliant's complaint included as Exhibit A the Contract and the Non Compete

Form as though the two were a single document, and again submitted the two documents

as Exhibit 8 at the preliminary injunction hearing as though they were Reliant's sole

noncompete covenant, the record revealed that the Contract and the Non Compete Form

were signed separately and years apart.

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{¶ 24} In her August 12, 2024 post-bench trial decision, the magistrate found that

"the Contract, which was an updated noncompete clause from the 'Non Compete Form'

was not signed on the same date as the 'Non Compete Form' and was likely backdated

from someone at Reliant Services." Based upon the foregoing, the magistrate considered

only the Contract in analyzing whether Reliant's noncompete covenant was enforceable.

Although Reliant filed objections to the magistrate's decision, it did not specifically object

to this finding by the magistrate. Reliant has therefore waived any appeal as to this finding

other than a claim of plain error. Reliant does not claim plain error. See Civ.R.

53(D)(3)(b)(iv); Marck v. Partin, 2024-Ohio-4829 (12th Dist.). In its decision overruling

Reliant's objections to the magistrate's decision, the trial court acknowledged there were

two noncompete clauses at issue in this case, but "decline[d] to read the 'Non Compete

Form' in conjunction with the [Contract] to limit the noncompete clause to Ryan Homes,"

in part because "there is no indication in the documents that they should be read in

conjunction with each other" and "the parties acknowledged at the preliminary injunction

hearing that the 'Non Compete Form' was not a valid noncompete clause and was

replaced by the [Contract]." Reliant did not assign as error on appeal the trial court's

finding that the Non Compete Form was not a valid noncompete clause and that it had

been replaced with the Contract's noncompete clause. We will therefore only address the

enforceability of the Contract's noncompete clause.

{¶ 25} The Contract's noncompete clause provides that, for one year after

termination, an individual working for Reliant shall not engage in any competitive business

("defined as any Customer of Company as they presently exist or as may be in existence

or development of the date of termination of my retention with the Company"), assist

others in engaging in any competitive business, or induce any employees or other

independent contractors of Reliant to terminate their employment with Reliant and/or

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engage in any competitive business.

{¶ 26} The magistrate found that the clause was unduly restrictive because it

contained no geographic specifications. The magistrate further found "there was no

evidence presented that [Brown] learned his trade through Reliant or that the punch-out

work involved trade secrets that [Brown] learned and could potentially share with a new

employer to the detriment of Reliant." Based upon the foregoing, the magistrate found

that the noncompete clause placed an undue hardship on Brown and was therefore

unenforceable. The trial court likewise found that the Contract's noncompete clause was

unenforceable because it had "no geographic limitations and no limitation to only address

Ryan Homes."

{¶ 27} As a general rule, restrictive covenants not to compete are disfavored by

the law. Willis Refrig., Air Conditioning & Heating v. Maynard, 2000 Ohio App. LEXIS 940,

*19 (12th Dist. Jan. 18, 2000). On the other hand, though "cautiously considered and

carefully scrutinized," Ohio courts have long recognized the validity of noncompete

agreements if they contain reasonable geographical and temporal restrictions. Lake Land

Emp. Group of Akron, LLC v. Columber, 2004-Ohio-786, ¶ 7-9. Thus, a noncompete

covenant will be enforced if "reasonable." Raimonde v. Van Vlerah, 42 Ohio St.2d 21, 25

(1975).

{¶ 28} A noncompete covenant is reasonable if (1) its restrictions are not greater

than what is required to protect the employer, (2) it does not impose an undue hardship

on the employee, and (3) it is not injurious to the public. Id. at 26. In determining the

validity of a noncompete covenant, each case must be decided on its own facts. Id. at 25.

A plaintiff seeking to enforce a noncompete covenant must establish, by clear and

convincing evidence, each of the three elements above. Total Quality Logistics, L.L.C. v.

BBI Logistics, L.L.C., 2024-Ohio-2597, ¶ 33 (12th Dist.).

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{¶ 29} In determining whether a noncompete covenant is reasonable, a court

should consider the following factors: (1) the absence or presence of limitations as to time

and space, (2) whether the employee represents the sole contact with the customer, (3)

whether the employee is possessed with confidential information or trade secrets, (4)

whether the covenant seeks to eliminate competition which would be unfair to the

employer or merely seeks to eliminate ordinary competition, (5) whether the covenant

seeks to stifle the inherent skill and experience of the employee, (6) whether the benefit

to the employer is disproportional to the detriment to the employee, (7) whether the

covenant operates as a bar to the employee's sole means of support, (8) whether the

employee's talent which the employer seeks to suppress was actually developed during

the period of employment, and (9) whether the forbidden employment is merely incidental

to the main employment. Raimonde, 42 Ohio St.2d at 25.

{¶ 30} Keeping the foregoing factors in mind, we conclude that the restraints and

resultant hardship on Brown do exceed that which is reasonable to protect Reliant's

legitimate business interests. The Contract's noncompete clause is a statewide, if not

worldwide, limitation from employment with any of Reliant's home-builder clients for a

period of one year. A one-year time period for a noncompete covenant is generally

reasonable. Kyrkos v. Superior Beverage Group, Ltd., 2013-Ohio-4597, ¶ 21 (8th Dist.).

However, in the circumstances of this case, where Brown only performed work for

Reliant's client, Ryan Homes, in Ohio's four southwest counties, the lack of any

geographic limitations makes the noncompete clause unduly restrictive. Professional

Investigations & Consulting Agency, Inc. v. Kingsland, 69 Ohio App.3d 753, 760 (10th

Dist. 1990); Evans v. Duracote Corp., 13 Ohio App.2d 63 (11th Dist. 1968). Thus, the

first Raimonde factor weighs against enforcing the Contract's noncompete clause.

{¶ 31} An employer's legitimate interests in utilizing a noncompete covenant

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include "prevent[ing] the disclosure of a former employer's trade secrets or the use of the

former employer's proprietary customer information to solicit the former employer's

customers." BBI Logistics, 2024-Ohio-2597, at ¶ 29 (12th Dist.). Another legitimate

purpose of a noncompete covenant is the retention of employees in which an employer

has invested time and other resources. Total Quality Logistics, L.L.C. v. Leonard, 2023-

Ohio-2271, ¶ 27 (12th Dist.). However, this case did not implicate trade secrets or

confidential information. Moreover, the record plainly shows that Reliant did not invest

time and money in training Brown, and did not play any role in Brown's development as

a skilled and professional punch-list contractor. Rather, Brown worked as a handyman

providing handyman and punch-list services for 25 years prior to his employment with

Reliant. Stated differently, Brown's knowledge and skills were not developed or improved

while he was a Reliant independent contractor. Noncompete covenants that prevent an

employee from using his or her general skills and experience in the marketplace weigh

against enforcement. Kyrkos at ¶ 25 (8th Dist.). In addition, while the record indicates

Brown dealt directly with Ryan Homes in scheduling work as a Reliant independent

contractor, he was not the sole contact with Ryan Homes. Thus, the second, third, and

eighth Raimonde factors weigh against enforcing the Contract's noncompete clause.

{¶ 32} Despite an employer's interests, enforcement of a noncompete covenant

cannot cause undue hardship on a former employee. BBI Logistics at ¶ 31 (12th Dist.).

"To be sure, any person who is prevented from practicing his profession or trade for a

period of time in an area in which it has been practiced, suffers some hardship. However,

the Raimonde test requires more than just some hardship." AK Steel Corp. v. Arcelormittal

USA, L.L.C., 2016-Ohio-3285, ¶ 19 (12th Dist.). "The public's interest in determining the

reasonableness of a noncompete [covenant] 'is primarily concerned with . . . promoting

fair business competition.'" BBI Logistics at ¶ 32. In highly competitive industries,

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enforcement of noncompete covenants are often found to not adversely affect the industry

or harm the public in limiting the public's options in obtaining goods and services. Id.

{¶ 33} Brown is providing the same type of punch-list services for Ryan Homes

now as he did for it when he worked as a Reliant independent contractor. The forbidden

employment is therefore not merely incidental to the main employment under the ninth

Raimonde factor. Although the Contract's noncompete clause prevents Brown from

working for or with Reliant's home-builder clients for a period of one year, it does not act

as a complete bar to his sole means of support or stifle his inherent skills and experience.

Fenik testified that Reliant does not prevent current and former independent contractors

from providing general handyman services or landscaping to residential property owners

or from working in commercial construction. Fenik stated that many individuals working

for Reliant, in fact, do side work on the weekends or if they have an opening in their work

schedule. Brown's testimony revealed that during the nine months the preliminary

injunction was in effect, he did not seek any alternative handyman employment or work

in commercial construction. Moreover, although the record shows Brown worked mostly,

if not exclusively, for Ryan Homes as a Reliant independent contractor, he never inquired

of Reliant if he could work for its other home-builder clients during the nine-month

preliminary injunction. The Raimonde test requires more than just some hardship. Brown

did not show that he could not readily obtain a position or establish a non-competing

practice. Wall v. Firelands Radiology, Inc., 106 Ohio App.3d 313, 333 (6th Dist. 1995).

Thus, the fifth and seventh Raimonde factors weigh in favor of enforcing the Contract's

noncompete clause. See BBI Logistics, 2024-Ohio-2597, at ¶ 39 (12th Dist.).

{¶ 34} While the public interest is served by robust competition between

companies, a company such as Reliant still has an interest in preventing unfair

competition. The record shows that skilled and reliable punch-list independent contractors

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such as Brown are highly sought out and challenging to find. Brown did not work for Ryan

Homes and was not acquainted with its executives during the 25 years he worked as an

independent handyman prior to working for Reliant as an independent contractor. Thus,

Brown took advantage of the relationship he formed with Ryan Homes while a Reliant

independent contractor to leverage an independent business relationship with Ryan

Homes. Nevertheless, the Contract's noncompete clause seeks to eliminate or limit

merely ordinary competition, as opposed to competition unfair to Reliant, because it is

defined so broadly that it prohibits Brown from working for any competitor, including

competitors performing work that is unrelated to Brown's work for Reliant. Thus, the fourth

Raimonde factor weighs against enforcing the Contract's noncompete clause.

{¶ 35} As for whether the benefit to Reliant is disproportional to the detriment of

Brown, the record shows that Reliant's amount of business with Ryan Homes did not

change, let alone decline, as a result of Brown's direct work for Ryan Homes. In that

respect, Reliant suffered no detriment. By contrast, Brown suffered a detriment in that he

derived significant income from directly working for Ryan Homes prior to the preliminary

injunction. Reliant claims it proved it suffered $12,668.25 in damages, which represent

30 percent of the $42,227.50 Brown earned working directly for Ryan Homes between

October 30, 2021, and March 27, 2022 (based upon Fenik's testimony that Reliant

generally received 30 percent of all amounts billed to Ryan Homes for punch-list

services). However, there is no evidence this business would have gone to Reliant. As

stated, the record shows that Reliant continued to get the same amount of business from

Ryan Homes as it did before Brown's departure. Thus, Reliant did not establish it was

damaged and the sixth Raimonde factor weighs against enforcing the Contract's

noncompete clause.

{¶ 36} In conclusion, we find the facts of this case applied to the Raimonde factors

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support the unreasonableness of the Contract's noncompete clause. The trial court,

therefore, did not err in finding that the Contract's noncompete clause is unenforceable

and in dismissing Reliant's breach-of-contract claim.

{¶ 37} Reliant's first assignment of error is overruled.

{¶ 38} Brown's Cross-Assignment of Error No. 1:

THE TRIAL COURT ERRED IN NOT AWARDING BROWN

LOSSES DURING THE WRONGFUL INJUNCTION.

{¶ 39} Brown argues that the trial court erred in determining he was only entitled

to the $1,000 bond Reliant posted as a result of the wrongful issuance of the preliminary

injunction. Brown asserts he is entitled to the loss of income he incurred ($115,000) when

he did not work during the time period between the March 27, 2022 issuance of the

temporary restraining order and the December 12, 2022 dissolution of the preliminary

injunction, as expressly provided by Civ.R. 65(C). In support of his argument, Brown cites

Beres v. Hope Homes, Inc., 1983 Ohio App. LEXIS 14938 (9th Dist. Apr. 27, 1983), and

Sheets v. Chittum, 90 Ohio App. 341 (10th Dist. 1951).

{¶ 40} Civ.R. 65(C) provides in part,

No temporary restraining order or preliminary injunction is

operative until the party obtaining it gives a bond executed by

sufficient surety, … in an amount fixed by the court or judge

allowing it, to secure to the party enjoined the damages he

may sustain, if it is finally decided that the order or injunction

should not have been granted.

{¶ 41} The amount of the bond is determined by the trial court, and the trial court

may set a bond at any amount. Metzger-Gleisinger Mechanical, Inc. v. Mansfield City

School Dist., 2005-Ohio-2727, ¶ 23 (5th Dist.). The bond is required to compensate the

party being enjoined should it be found the injunction was improperly granted. Id. at ¶ 22.

However, the enjoined party is only entitled to recover the amount of its provable damages

up to the amount of the bond. Kyrkos, 2013-Ohio-4597, at ¶ 30 (8th Dist.); Kingsland, 69

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Ohio App.3d at 762.

{¶ 42} Civ.R. 65(C) permits the enjoined party to move the court to increase the

bond, "[b]efore judgment, upon reasonable notice to the party who obtained [the]

injunction." At the conclusion of the preliminary injunction hearing, Brown's counsel

moved the trial court to increase the bond, but presented no evidence in support of his

request and did not suggest an amount. The court denied the request, stating, "I'm not

going to increase the bond at this time." The court then advised the parties that the TRO

would be modified to enjoin Brown from working only for Ryan Homes, and that "[i]f there's

anyone else that he wants to work with, that's fine in any geographical area at all. I'm just

going to narrow it down to Ryan Homes at this point." That same day, the court issued an

order reflecting the modification of the TRO. Thereafter, Brown never raised the bond

issue again. Although he could have filed a motion pursuant to Civ.R. 65(C) to increase

the bond and present the trial court with evidence quantifying his claimed loss of income,

he did not.

{¶ 43} The cases cited by Brown as authority that an enjoined party can recover

damages beyond a posted bond amount are not applicable here. Contrary to Brown's

suggestion, the cases do not explicitly hold that damages beyond the posted bond

amount are generally available, or that damages for a wrongfully issued injunction are not

limited to the security posted pursuant to Civ.R. 65(C). In addition, the cases do not

involve a scenario in which an enjoined party was awarded damages for a wrongfully

issued injunction over the posted security amount.

{¶ 44} In light of the foregoing, Brown's damages are limited to the amount of the

posted bond–1,000, and the trial court did not err in determining he was only entitled to

the posted bond as a result of the wrongful issuance of the preliminary injunction. Kyrkos,

2013-Ohio-4597, at ¶ 30 (8th Dist.); Kingsland, 69 Ohio App.3d at 762. Brown's first cross-

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assignment of error is overruled.

{¶ 45} Brown's Cross-Assignment of Error No. 2:

THE TRIAL COURT ERRED IN GRANTING SUMMARY

JUDGMENT DISMISSING BROWN'S COUNTERCLAIMS.

{¶ 46} Brown argues the trial court erred in granting summary judgment to Reliant

on his counterclaims for abuse of process and tortious interference with a contract and

business relationship.

{¶ 47} Summary judgment is proper when (1) there is no genuine issue of any

material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) the

evidence submitted can only lead reasonable minds to a conclusion which is adverse to

the nonmoving party, construing the evidence most strongly in that party's favor. Civ.R.

56(C); Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). The moving

party bears the initial burden of informing the court of the basis for the motion and

demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 1996-

Ohio-107, ¶ 17. Once this burden is met, the nonmoving party has a reciprocal burden to

set forth specific facts showing there is some genuine issue of material fact yet remaining

for the trial court to resolve. Id. The nonmoving party may not rest upon the mere

allegations or denials of the pleadings, but must supply evidentiary materials setting forth

specific facts that demonstrate there is a genuine issue for trial. Civ.R. 56(E); Puhl v. U.S.

Bank, N.A., 2015-Ohio-2083, ¶ 13 (12th Dist.). Summary judgment is proper if the

nonmoving party fails to set forth such facts. Id.

{¶ 48} In determining whether a genuine issue of material fact exists, the court

must answer the following inquiry: "Does the evidence present a sufficient disagreement

to require submission to a jury or is it so one-sided that one party must prevail as a matter

of law?" Palmer v. Mossbarger, 2015-Ohio-231, ¶ 13 (12th Dist.).

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{¶ 49} An appellate court reviews a trial court's decision on a motion for summary

judgment de novo, independently and without deference to the decision of the trial court.

Paramount Farms Intl., L.L.C. v. Ventilex B.V., 2016-Ohio-1150, ¶ 16 (12th Dist.).

Tortious Interference with a Contract or Business Relationship

{¶ 50} Brown argues the trial court erred in granting summary judgment to Reliant

on his tortious interference counterclaims. Brown asserts it is "undisputed [he] and Ryan

Homes had a business relationship by their contract for handyman services that Reliant

stopped by use of what was ultimately determined to be an improper resort to injunctive

relief."

{¶ 51} "The torts of interference with business relationships and contract rights

generally occur when a person, without a privilege to do so, induces or otherwise

purposely causes a third person not to enter into or continue a business relation with

another, or not to perform a contract with another." A & B-Abell Elevator Co. v.

Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 1995-Ohio-66, ¶ 49. "'The

elements essential to recovery for a tortious interference with a business relationship are:

(1) a business relationship; (2) the wrongdoer's knowledge thereof; (3) an intentional

interference causing a breach or termination of the relationship; and (4) damages

resulting therefrom.'" Ginn v. Stonecreek Dental Care, 2015-Ohio-1600, ¶ 11 (12th Dist.),

quoting Wolf v. McCullough-Hyde Mem. Hosp., 67 Ohio App.3d 349, 355 (12th Dist.

1990).

{¶ 52} In contrast, the elements of tortious interference with a contract are "'(1) the

existence of a contract, (2) the wrongdoer's knowledge of the contract, (3) the

wrongdoer's intentional procurement of the contract's breach, (4) the lack of justification,

and (5) resulting damages.'" Ginn at ¶ 12, quoting Fred Siegel Co., L.P.A. v. Arter &

Hadden, 1999-Ohio-260, ¶ 18. To prevail, a party must demonstrate that the wrongdoer

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intentionally and improperly interfered with the party's contractual relations with another.

Total Quality Logistics, L.L.C. v. All Shippers, Inc., 2021-Ohio-781, ¶ 78 (12th Dist.).

{¶ 53} "The tort of interference with contract is based on the principle that one who,

without privilege to do so, induces or otherwise purposefully causes a third person not to

perform a contract with another is liable to the other for any of the harm caused." Egypt,

Inc. v. Akron Bd. of Edn., 1990 Ohio App. LEXIS 5675, *4 (9th Dist. Dec. 19, 1990). "If no

contract existed between the plaintiff and a third party at the time when the defendant

allegedly interfered, the plaintiff's claim for intentional interference with a contract must

fail as a matter of law." Magnum Steel & Trading, L.L.C. v. Mink, 2013-Ohio-2431, ¶ 10

(9th Dist.). In other words, a contract must exist. Here, Brown has presented no evidence

of a contract between himself and a third party, including Ryan Homes, with which Reliant

has interfered. The trial court, therefore, did not err in dismissing Brown's counterclaim

for tortious interference with a contract.

{¶ 54} We likewise find that the trial court did not err in dismissing Brown's

counterclaim for tortious interference with a business relationship. Brown asserts that

Reliant intentionally interfered with Brown's business relationship with Ryan Homes,

thereby causing a breach or termination of the relationship, "by use of what was ultimately

determined to be an improper resort to injunctive relief." Contrary to Brown's suggestion,

the trial court never held that Reliant's act of seeking injunctive relief was improper.

Rather, the trial court dissolved the preliminary injunction on the sole ground that

"[Reliant] ha[d] not met the burden of clear and convincing evidence necessary to justify

an injunction." Turning to Brown's argument, Reliant's mere resort to filing a civil lawsuit

against Brown and seeking a preliminary injunction does not constitute a tortious

interference with a business relationship. To hold otherwise would have a chilling effect

on valid lawsuits seeking to enforce contractual provisions such as a noncompete

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covenant. Moreover, Brown has failed to articulate any damages resulting from Reliant's

alleged tortious interference with a business relationship. Here, Brown was out of work

for several months as a result of the magistrate's decision granting Reliant a preliminary

injunction. Thus, Brown's claimed loss of income was not caused by Reliant's filing of the

lawsuit and seeking of a preliminary injunction, but by the magistrate granting the

preliminary injunction.

Abuse of Process

{¶ 55} Brown argues the trial court erred in granting summary judgment to Reliant

on his abuse-of-process counterclaim. Brown asserts that Reliant's resort to injunctive

relief was not only "an act committed during the process that was not proper in the normal

context of the proceeding," but it also perverted the proceeding to accomplish the ulterior

purpose of stopping Brown from working at all and showing others of like mind what can

happen if they attempt to compete with Reliant.

{¶ 56} Abuse of process encompasses cases where "legal procedure has been

set in motion in proper form, with probable cause, and even with ultimate success, but

nevertheless has been perverted to accomplish an ulterior purpose for which it was not

designed." Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 1994-Ohio-503, ¶ 11. Thus,

abuse of process is designed to remedy the misuse or exploitation of the legal process

after a party has properly initiated a lawsuit with probable cause. Gauthier v. Gauthier,

2019-Ohio-4397, ¶ 67 (12th Dist.).

{¶ 57} To prevail on an abuse-of-process claim, the claimant must establish that

(1) a legal proceeding has been set in motion in proper form and with probable cause, (2)

the proceeding has been perverted to attempt to accomplish an ulterior purpose for which

it was not designed, and (3) direct damage has resulted from the wrongful use of process.

Id. "[T]he key consideration in an abuse of process action is whether an improper purpose

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was sought to be achieved by the use of a lawfully brought previous action." Yaklevich at

¶ 19. In a claim for abuse of process, the tortious character of the conduct of the initiator

of the lawsuit must be clearly shown by the claimant to entitle him to maintain his action.

Clermont Environmental Reclamation Co. v. Hancock, 16 Ohio App.3d 9, 11 (12th Dist.

1984). "[A]buse of process occurs where someone attempts to achieve through use of

the court that which the court is itself powerless to order." Robb v. Chagrin Lagoons Yacht

Club, Inc., 1996-Ohio-189, ¶ 31.

{¶ 58} We find there is no genuine issue of material fact regarding Brown's abuse-

of-process counterclaim because Brown failed to present evidence establishing Reliant's

ulterior motive. That is, there is no summary judgment evidence that Reliant had an

ulterior motive in seeking injunctive relief. Here, Reliant filed a lawsuit against Brown and

sought injunctive relief specifically to prevent Brown from competing directly with it. These

are not "ulterior purposes" that Reliant aims to accomplish but are clearly the stated and

primary goals of these proceedings. Furthermore, as plainly shown by its December 12,

2022 decision dissolving the preliminary injunction, it is well within the trial court's

jurisdiction to grant or deny a preliminary injunction. See Robb at ¶ 31. See also Robert

W. Clark, M.D., Inc. v. Mt. Carmel Health, 124 Ohio App.3d 308, 315 (10th Dist. 1997)

(noncompete covenants may be enforced by injunctive relief). The trial court, therefore,

did not err in granting summary judgment in favor of Reliant on Brown's abuse-of-process

counterclaim.

{¶ 59} In light of the foregoing, the trial court did not err in granting summary

judgment to Reliant on Brown's counterclaims for abuse of process and tortious

interference with a contract and business relationship. Brown's second cross-assignment

of error is overruled.

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{¶ 60} Judgment affirmed.

BYRNE, P.J., and M. SIEBERT, J., concur.

JUDGMENT ENTRY

The assignments of error properly before this court having been ruled upon, it is

the order of this court that the judgment or final order appealed from be, and the same

hereby is, affirmed.

It is further ordered that a mandate be sent to the Warren County Court of Common

Pleas for execution upon this judgment and that a certified copy of this Opinion and

Judgment Entry shall constitute the mandate pursuant to App.R. 27.

Costs to be taxed 50% to appellant and 50% to appellee.

/s/ Matthew R. Byrne, Presiding Judge

/s/ Mike Powell, Judge

/s/ Melena S. Siebert, Judge

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