Green v. CDO Technologies, Inc.

[Cite as Green v. CDO Technologies, Inc., 2021-Ohio-1603.]

                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 VERONICA GREEN                                      :
         Plaintiff-Appellant                         :       Appellate Case No. 28951
 v.                                                  :       Trial Court Case No. 2019-CV-5742
 CDO TECHNOLOGIES, INC.                              :       (Civil Appeal from
                                                     :       Common Pleas Court)
         Defendant-Appellee                          :



                              Rendered on the 7th day of May, 2021.


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



       {¶ 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


       {¶ 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


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



         MOTION     TO   DISMISS      AND    DISMISSED       VERONICA       GREEN’S


         {¶ 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 – inconsistently – both that

the trial court erred because it purportedly considered extrinsic evidence, directly or

indirectly, in concluding that the settlement agreement lacked a no-disparagement

provision applicable to CDO and that the trial court erred “when it failed to read unwritten

purported obligations” into the settlement agreement that were “not contained in the fully

integrated Settlement Agreement.”      CDO asserts that Green incorrectly claims that

CDO’s obligation to provide the original letter also constituted an unwritten obligation not

to disparage Green. According to CDO, the trial court properly considered “only the plain

language” of the agreement in concluding that Green could not establish her breach of

contract claim even if all facts alleged in the amended complaint were true; the court did

not consider and should not have considered extrinsic evidence, because all of the

obligations of the parties were expressly spelled out and contained in the separation

agreement, and those obligations did not prohibit CDO from disparaging Green.

       {¶ 14} CDO asserts that the trial court considered and rejected Green’s argument

that CDO had not provided the consideration it was obligated to provide pursuant to the

settlement agreement, because there was no unwritten non-disparagement obligation on

CDO. CDO asserts that the trial court properly concluded that CDO’s only obligations –

payment of money and provision of the letter – had been satisfied.

       {¶ 15} In reply, Green repeats her assertions that CDO undercut the value of the

letter by making derogatory comments, thereby depriving her of consideration for which

she had bargained.      Green denies that she asked to trial court to read additional,

unwritten terms into the settlement agreement or to incorporate a non-disparagement

clause that clearly does not exist “within the four corners of the document,” Green asserts

that she should be allowed to present evidence that CDO’s actions subsequent to the

agreement breached the agreement.

      {¶ 16} This Court has previously noted:

             A motion to dismiss for failure to state a claim upon which relief can

      be granted, pursuant to Civ.R. 12(B)(6), “is procedural and tests the

      sufficiency of the complaint.” State ex rel. Hanson v. Guernsey Cty. Bd. of


65 Ohio St. 3d 545

, 548, 

605 N.E.2d 378

(1992); Grover v.


170 Ohio App. 3d 188

, 2006-Ohio-6115, 

866 N.E.2d 547

, ¶ 16 (2d

      Dist.). The court must construe the complaint in the light most favorable to

      the plaintiff, presume all of the factual allegations in the complaint are true,

      and make all reasonable inferences in favor of the plaintiff. Grover at ¶ 16,

      citing Mitchell v. Lawson Milk Co., 

40 Ohio St. 3d 190

, 192, 

532 N.E.2d 753

      (1988). A motion to dismiss under Civ.R. 12(B)(6) should be granted only

      where the complaint, so construed, demonstrates that the plaintiff can prove

      no set of facts entitling him to relief. Sherrod v. Haller, 2017-Ohio-5614,


94 N.E.3d 148

, ¶ 6 (2d Dist.). “The standard for dismissal under Civ.R.

      12(B)(6) is consistent with Civ.R. 8(A), which requires that a complaint

      ‘contain * * * a short and plain statement of the claim [or claims] showing

      that the [plaintiff] is entitled to relief.’ ” Toney v. Dayton, 2017-Ohio-5618,


94 N.E.3d 179

, ¶ 36 (2d Dist.).

        “An order granting a Civ.R. 12(B)(6) motion to dismiss is subject to

de novo review.” Duer v. Henderson, 2d Dist. Miami No. 2009 CA 15,

2009-Ohio-6815, ¶ 68, quoting Perrysburg Twp. v. Rossford, 103 Ohio

St.3d 79, 2004-Ohio-4362, 

814 N.E.2d 44

, ¶ 5. This means the appellate

court “must independently review the complaint to determine whether

dismissal is appropriate.”   Boyd v. Archdiocese of Cincinnati, 2d Dist.

Montgomery No. 25950, 2015-Ohio-1394, ¶ 13, quoting Ament v. Reassure

Am. Life Ins. Co., 

180 Ohio App. 3d 440

, 2009-Ohio-36, 

905 N.E.2d 1246


¶ 60 (8th Dist.).

        In conducting that review, we are “bound to assume that the facts

pleaded in the complaint are true, but the same does not apply to

conclusions of law that the pleader contends are proved by those facts.”

Thomas v. Progressive Cas. Ins. Co., Inc., 2011-Ohio-6712, 

969 N.E.2d


, ¶ 8 (2d Dist.). We are not to consider “unsupported conclusions that

may be included among, but not supported by, the factual allegations of the

complaint.” Boyd at ¶ 13, quoting Wright v. Ghee, 10th Dist. Franklin No.

01AP-1459, 2002-Ohio-5487, ¶ 19.

       Although the rule itself states that matters to be considered on a

Civ.R. 12(B)(6) motion are limited to those that appear within the relevant

pleading, material incorporated within a complaint is part of that pleading.

Boyd at ¶ 14, citing State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 


Ohio St. 3d 247

, 249, 

673 N.E.2d 1281

, fn. 1, (1997) (“Material incorporated

in a complaint may be considered part of the complaint for purposes of

      determining a Civ.R. 12(B)(6) motion to dismiss.”). Such material includes

      not only exhibits to a complaint, but also written instruments “upon which a

      claim is predicated,” regardless of whether such material actually is

      attached to the pleading.


Williams v. Dayton

Water, 2020-Ohio-4332, 

158 N.E.3d 654

, ¶ 10-13 (2d Dist.).

      {¶ 17} This Court has further noted:

              “[A] settlement agreement is a contract designed to terminate a claim

      by preventing or ending litigation and * * * such agreements are valid and

      enforceable by either party.” (Citations omitted.) Continental W.

      Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc., 74 Ohio

      St.3d 501, 502, 

660 N.E.2d 431

(1996). The law highly favors settlement



“Settlement agreements are

essentially a contract and are governed

      by the law of contracts. To establish a breach of a settlement agreement,

      the party alleging the breach must prove: 1) existence of the Settlement

      Agreement, 2) performance by the plaintiff, 3) breach by the defendant, 4)

      resulting damages or loss to the plaintiff.” (Citation omitted.) Raymond J.

      Schaefer, Inc. v. Pytlik, 6th Dist. Ottawa No. OT-09-026, 2010-Ohio-4714,

      ¶ 24.

Kilroy v. Peters, 2d Dist. Montgomery No. 25547, 2013-Ohio-3384, ¶ 36-37.

      {¶ 18} Further:

              “The cardinal purpose for judicial examination of any written

      instrument is to ascertain and give effect to the intent of the parties.”

(Citation omitted.)   Foster Wheeler Enviresponse, Inc. v. Franklin Cty.

Convention Facilities Auth., 

78 Ohio St. 3d 353

, 361, 

678 N.E.2d 519


“The intent of the parties to a contract is presumed to reside in the language

they chose to employ in the agreement.” Kelly v. Med. Life Ins. Co., 


Ohio St. 3d 130


509 N.E.2d 411

(1987), paragraph one of the syllabus.

“Under such circumstances, a court may not go beyond the plain language

of the agreement to determine the parties' rights and obligations, and it may

not consider parole [sic] evidence of the parties' intentions.” (Citations

omitted.) SFJV 2005, L.L.C. v. Ream, 

187 Ohio App. 3d 715

, 2010-Ohio-


933 N.E.2d 819

, ¶ 22 (2d Dist.).

       “The parol evidence rule states that ‘absent fraud, mistake or other

invalidating cause, the parties' final written integration of their agreement

may not be varied, contradicted or supplemented by evidence of prior or

contemporaneous oral agreements, or prior written agreements.’ ”

Galmish v. Cicchini, 

90 Ohio St. 3d 22

, 27, 

734 N.E.2d 782

(2000), quoting

11 Williston on Contracts, Section 33:4, at 569-570 (4th Ed. 1999). “Despite

its name, the parol evidence rule is not a rule of evidence, nor is it a rule of

interpretation or construction. * * * ‘The parol evidence rule is a rule of

substantive law which, when applicable, defines the limits of a contract.’ ”

Id., quoting Charles A.

Burton, Inc. v. Durkee, 

158 Ohio St. 313

, 324, 


N.E.2d 265

(1952), paragraph one of the syllabus.

       In Galmish, the court further explained that:

          “The parol evidence rule, as is now universally recognized, is not

  a rule of evidence but is one of substantive law. It does not exclude

  evidence for any of the reasons ordinarily requiring exclusion, based on

  the probative value of such evidence or the policy of its admission. The

  rule as applied to contracts is simply that as a matter of substantive law,

  a certain act, the act of embodying the complete terms of an agreement

  in a writing (the ‘integration’), becomes the contract of the parties. The

  point then is, not how the agreement is to be proved, because as a

  matter of law the writing is the agreement.        Extrinsic evidence is

  excluded because it cannot serve to prove what the agreement was,

  this being determined as a matter of law to be the writing itself. The

  rule comes into operation when there is a single and final memorial of

  the understanding of the parties. When that takes place, prior and

  contemporaneous negotiations, oral or written, are excluded; or, as it is

  sometimes said, the written memorial supersedes these prior or

  contemporaneous negotiations.”

Galmish at 27, 

734 N.E.2d 782

, quoting In re Gaines' Estate, 

15 Cal. 2d 255



100 P.2d 1055


      An “integration” for purposes of the parol evidence rule “is ‘[t]he full

expression of the parties' agreement, so that all earlier agreements are

superseded, the effect being that neither party may later contradict or add

to the contractual terms.’ ” Williams v. Spitzer Autoworld Canton, L.L.C.,

122 Ohio St. 3d 546

, 2009-Ohio-3554, 

913 N.E.2d 410

, ¶ 28 (Cupp, J.,

concurring), quoting Black's Law Dictionary 880 (9th Ed. 2009). “If an

       integration is a ‘complete integration,’ then it fully expresses the intent of the

       parties, and parol evidence is inadmissible. * * * On the other hand, if an

       integration is a ‘partial integration,’ then it does not fully express the parties'

       intent, and ‘[p]arol (extrinsic) evidence is admissible to clear up ambiguities

       with respect to the terms that are not integrated.’ ”

Id., quoting Black’s at


              “A contract that appears to be a complete and unambiguous

       statement of the parties' contractual intent is presumed to be an integrated

       writing.” (Citations omitted.) Bellman v. Am. Internatl. Group, 113 Ohio

       St.3d 323, 2007-Ohio-2071, 

865 N.E.2d 853

, ¶ 11. “The question of partial

       integration must be determined from the four corners of the document itself

       * * *. Furthermore, in the case of a partial integration, only consistent

       additional terms may be added, not inconsistent terms.” (Citation omitted.)

       TRINOVA Corp. v. Pilkington Bros., P.L.C., 

70 Ohio St. 3d 271

, 276, 


N.E.2d 572


PNC Bank, N.A. v. Springboro Med. Arts, Inc., 2015-Ohio-3386, 

41 N.E.3d 145

, ¶ 16-20

(2d Dist.).

       {¶ 19} The settlement agreement described the parties’ past employment

relationship and the lawsuit that arose from the termination of that relationship, which they

sought to resolve through the settlement agreement. It then stated:

       NOW THEREFORE, in consideration of the mutual promises and valuable

       consideration described below, the parties agree as follows:


2. Consideration

After CDO’s receipt of the original of this Settlement Agreement and

General Release signed by Green, the Agreed Entry of Dismissal with

Prejudice for the Lawsuit signed by Green’s attorney, and completed IRS

forms W-9 from Green and her counsel, CDO shall pay or cause to paid to

Green the total gross amount of Forty Five Thousand Dollars ($45,000) and

other consideration as set below, as follows:


d. The original of the letter attached hereto as Exhibit [B].


6. Settlement of All Claims. Green acknowledges and agrees that the

consideration provided as set forth herein constitutes full, final and complete

satisfaction of any and all CLAIMS against CDO and RELEASEES including

but in no way limited to, CLAIMS which exist or which may exist based on

or in any way arising under or relating to Green’s employment with CDO or

her termination therefrom.

7. No Admission. Green acknowledges and agrees that CDO and all

RELEASEES have consistently disputed and continue to dispute the merit

of her CLAIMS. * * * CDO and RELEASEES specifically deny and disclaim

any liability, discrimination or harassment against Green and by entering

into this Settlement Agreement and General Release intend merely to

resolve any and all differences in an amicable and economical way.


10.   No Disparagement.         Green shall not make any disparaging or

negative statements about CDO or any of the RELEASEES to any person

or entity, including but not limited to any past, present or prospective

customer of CDO.       Neither Green [n]or anyone on her behalf, nor her

attorney, shall communicate, orally or in writing, with any print or other

public media about any matter arising out of her employment with CDO, the

termination thereof, the Lawsuit, or this Agreement.


16. Entire Agreement. This Agreement sets forth the entire agreement

by and between Green and CDO and supersedes any and all prior

agreements and understandings, whether written or oral, between them

* * *. This Agreement shall not be modified except by written agreement

duly executed by or on behalf of each of the parties hereto.                This

Agreement shall be governed by and construed in accordance with the law

of the State of Ohio. * * *

17.   Miscellaneous.      Green acknowledges that she is fully able and

competent to enter into this Agreement, that she has read this Agreement

in its entirety, that she had an opportunity to, and did, in fact, review it with

her attorney, and that her agreement to all of its provisions is made freely,

voluntarily, and with full and complete knowledge and understanding of its

contents.   Green also acknowledges and agrees that, in signing this

Agreement, she has not relied upon any representations made by CDO with

regard to the subject matter, basis, or tax consequences of the character or

      treatment of the settlement payments hereunder, or effect of this Agreement

      or otherwise, other than the obligations of the parties set forth in this


      {¶ 20} Exhibit B to the settlement agreement was a copy of the letter that CDO

was required to execute as consideration for the agreement. The letter stated:

      To Whom It May Concern:

      Veronica Green was employed by CDO Technologies, Inc. from November

      17, 1997 until February 19, 2013, when her position was eliminated as part

      of a reduction in force. During her employment with CDO, Ms. Green held

      several important positions with the Company, including Program Manager,

      Operations   Manager,     Senior   Operations   Manager,    and    Director,

      Government Services Operations. The last position Ms. Green held with

      CDO was Director of Operations MS/IA.            Ms. Green’s duties and

      responsibilities in that position included requiring her to manage multiple

      concurrent government and commercial contracts with multi-million dollar

      cumulative budgets, to develop customer partnerships with respect to

      program/project performance meeting customer expectations and key

      business objectives, and to manage day-to-day operations and core

      functions of aspects of CDO’s government service business to maintain

      operational excellence.    Ms. Green possesses and displayed sound

      technical skills and her performance in a number of critical areas was above

      the Company’s normal expectations for the position.

      {¶ 21} As we must, we presume that the allegations in Green’s complaint are true,

namely that CDO “published false and erroneous statements about [her] in respect to her

employment with [CDO] to third parties/potential employers.” As noted by the trial court,

the settlement agreement, by its express terms, was a fully integrated agreement that

reflected the parties’ intent. There is no dispute that Green received the consideration

set forth in the contract in exchange for the dismissal of her claims against CDO, namely

$45,000 and an executed version of the letter set forth at Exhibit B. While Green argues

that the letter was reduced to a “nullity” by CDO’s subsequent conduct in disparaging her,

the settlement agreement did not contain a “no disparagement” clause applicable to CDO.

Green agreed to the terms of the settlement agreement as written, and the trial court

correctly declined to afford the settlement agreement a construction beyond its own plain

language.   In other words, Green failed to establish that CDO had breached the

settlement agreement, and the trial court correctly found that there was no basis for a

claim that CDO had breached the agreement. Thus, the trial court properly granted

CDO’s motion to dismiss.

      {¶ 22} Green’s assignment of error is overruled.

      {¶ 23} The judgment of the trial court is affirmed.


HALL, J. and EPLEY, J., concur.

Copies sent to:

David M. Duwel
Michael S. Glassman
Christopher M. Jones
Hon. Michael W. Krumholtz

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