Green v. CDO Techs., Inc.

2021 Ohio 1603

VERONICA GREEN Plaintiff-Appellant v. CDO TECHNOLOGIES, INC. Defendant-Appellee

Appellate Case No. 28951

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

May 7, 2021

Trial Court Case No. 2019-CV-5742

(Civil Appeal from Common Pleas Court)

OPINION

DAVID M. DUWEL, Atty. Reg. No. 0029583, 130 West Second Street, Suite 2101, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant

MICHAEL S. GLASSMAN, Atty. Reg. No. 0012713 and CHRISTOPHER M. JONES, Atty. Reg. No. 0097556, 255 East Fifth Street, Suite 1900, Cincinnati, Ohio 45202 Attorneys for Defendant-Appellee

DONOVAN, J.

{¶ 1} Veronica Green appeals from an order of the Montgomery County Court of Common Pleas, which dismissed her breach of contract claim against her former employer, CDO Technologies, Inc. ("CDO"). We affirm the judgment of the trial court.

{¶ 2} Green formerly was employed by CDO until February 2013, when CDO terminated her employment. After the termination, Green filed a lawsuit alleging various employment claims with respect to her termination. In March 2014, Green and CDO entered into a settlement agreement, and they agreed to dismiss the lawsuit with prejudice. Among other things, the settlement agreement required that CDO pay Green $45,000 and provide Green with a letter stating that her position "was eliminated due to a reduction in force" and describing her roles and responsibilities with the company. The settlement agreement did not include any provision prohibiting CDO or any of its employees from making disparaging or negative statements about Green; however, the agreement did preclude Green from making disparaging or negative statements about CDO.

{¶ 3} Green filed a complaint against CDO on December 3, 2019, alleging that CDO had breached the settlement agreement by providing "false and erroneous statements" about Green to third parties with respect to her employment with CDO. Green alleged that she had suffered damages and that her reputation in the community had been harmed by CDO's actions. Green asserted that she had fully complied with her obligations under the settlement agreement. A copy of the settlement agreement was attached to the complaint, along with a copy of the letter that CDO agreed to execute regarding Green's employment and the reason for her dismissal. On January 29, 2020, CDO filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted.

{¶ 4} On February 12, 2020, Green filed an amended complaint; again, the settlement agreement and the "letter of recommendation which was part of the promised consideration" were attached. The amended complaint stated that CDO "agreed to provide its letter of recommendation for [Green] so she could utilize it in securing future employment with other employers"; the letter stated that she lost her position with CDO due to a reduction in force, described that she held several important positions with the company, and said that she had performed key duties and was responsible for a variety of tasks. Green alleged in the amended complaint that, after the execution of the settlement agreement, CDO nonetheless "published false and erroneous statements about [Green] in respect to her employment with [CDO] to third parties/potential employers," which made "meaningless" the consideration (the letter of recommendation) provided to Green pursuant to the settlement agreement.

{¶ 5} CDO filed a motion to dismiss Green's amended complaint on February 26, 2020. CDO's motion to dismiss asserted that Green's amended complaint did "absolutely nothing to cure the defect" in her original complaint, which Green implicitly acknowledged by filing an amended complaint rather than responding to CDO's motion to dismiss. According to CDO, Green's amended complaint still did not identify a single provision in the settlement agreement that CDO had breached by its alleged actions. According to CDO, Green alleged that CDO breached the provision requiring it to provide the letter of recommendation "by making disparaging, negative, erroneous, or false statements about her," but even assuming that the allegations in Green's amended complaint were true, neither the provision cited by Green nor any other provision in the settlement agreement stated that CDO could not make negative statements about Green. Thus, CDO asserted that Green had not stated a breach of contract claim upon which relief could be granted, because the facts she alleged, even if true, did not support her legal conclusion that CDO had breached the settlement agreement.

{¶ 6} In her response to the motion to dismiss, Green characterized the letter of recommendation as "very positive" and stated that her purpose in demanding the letter as part of the settlement agreement was "to ensure that the hostility surrounding her termination from CDO did not carry over into the future." She argued that, after the parties executed the settlement agreement, she discovered to her dismay that a "key CDO manager" with whom she had "battled" during her employment with CDO was "doing exactly what she [had tried] to eliminate by obtaining the letter of recommendation," namely, he was "publishing and uttering false and erroneous statements about [her] employment with CDO to third parties and [her] potential employers." For this reason, she claimed that she was deprived of part of her bargain with CDO to "a smooth transition to the future." She asserted that the disparaging comments significantly reduced the value of the letter that was part of the consideration for the settlement agreement. Green asserted that her reputation in the industry "had been compromised and tarnished" and that CDO had "reneged" on its promise. Green contended that she would never have agreed to settle her employment dispute with CDO if she had known that it did not intend "to give full faith and credit" to the statements in the letter of recommendation, and that she should have an opportunity "to testify and provide information obtained in discovery to prove how valuable this letter of recommendation was" to her.

{¶ 7} Specifically, Green referred the court to section 2 of the settlement agreement, which listed as consideration for the agreement three separate $15,000 payments to Green and her attorney and the "letter of reference depicted at Exhibit B." Green argued that, if CDO had failed to make one of the $15,000 payments, she could have brought an action for breach of the agreement, so its "failure to provide a meaningful letter of recommendation" by making disparaging comments about her should likewise be viewed as breach of the agreement. In conclusion, Green asserted that CDO made "an illusionary promise" to her, then intentionally took it back, "devalu[ing] the consideration" it gave for the settlement agreement.

{¶ 8} On October 6, 2020, the trial court sustained CDO's motion to dismiss. The court found that, construing the amended complaint in the light most favorable to Green, she could prove no set of facts entitling her to relief. The court declined to consider evidence about discussions between Green and CDO in reaching the terms of the settlement agreement, because it found that the agreement was "fully integrated" and represented the entirety of the agreement. The court also found that there were no ambiguous terms that required the consideration of extrinsic evidence.

{¶ 9} Specifically, the court found that Green could not prove that CDO had breached the settlement agreement because the non-disparagement clause applied only to Green, and the court found that disparaging statements made by CDO about Green were not prohibited. The court rejected Green's argument that any such statements by CDO "violate[d] the consideration it contracted to provide"; CDO paid Green the promised $45,000 and furnished the letter of recommendation that was referred to as part of CDO's "consideration," and thus had satisfied its obligations. Because the agreement did not include a non-disparagement obligation on the part of CDO, CDO had not breached the agreement.

{¶ 10} Green appeals from the trial court's judgment, raising one assignment of error:

THE TRIAL COURT ERRED WHEN IT SUSTAINED CDO'S MOTION TO DISMISS AND DISMISSED VERONICA GREEN'S AMENDED COMPLAINT WITH PREJUDICE.

{¶ 11} Green asserts that the trial court's conclusion that there was no non-disparagement clause that applied to CDO was central to its resolution of the case, but that in reaching this conclusion, the trial court "directly or indirectly considered extrinsic evidence outside of the four corners" of the settlement agreement. She also asserts that the trial court erred "when it failed to consider [her] argument that part of the consideration bargained for in the Settlement Agreement was [CDO's] letter of recommendation," and that CDO's agreement to provide her with "a positive letter of reference" was "totally muted and of no value" if CDO were otherwise permitted to make disparaging comments about her. Green argues that the trial court "misse[d] the critical point" of her argument that, by undercutting the value of the letter by making disparaging comments about her, CDO nullified part of her bargained-for consideration, which constituted a breach. Green contends that neither her agreement not to disparage CDO nor the absence of a "similar clause running in [her] favor" was relevant to the issue that CDO made "an illusory promise" to her, which it later rendered meaningless.

{¶ 12} CDO responds that Green's amended complaint does not allege that it failed to provide all of the consideration required by the settlement agreement, including the letter. CDO also asserts that only Green had a contractual non-disparagement obligation pursuant to the settlement agreement; the agreement did not include any provision prohibiting CDO or its employees from making disparaging or negative statements about Green.

{¶ 13} CDO also asserts that Green's brief contends -...