Ohio Appellate Reports


URDA v. BUCKINGHAM, Unpublished Decision (12-27-2006)
2006-Ohio-6915 LINDA URDA, Appellant v. BUCKINGHAM,
DOOLITTLE, & BURROUGHS, et al. Appellees. No. 23226.
Court of Appeals of Ohio, Ninth District. DATE OF JUDGMENT
ENTRY: December 27, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appeal from Judgment entered in the Court of
Common Pleas County of Summit, Ohio Case No. CV 2002 11


DENISE J. KNECHT, Attorney at Law, for Appellant.

JOHN F. HILL, Attorney at Law, for Appellees.


This cause was heard upon the record in the trial court.
Each error assigned has been reviewed and the following
disposition is made:

{¶ 1} Appellant, Linda Urda, appeals from the
judgment of the Summit County Court of Common Pleas which
granted summary judgment to Appellees, Buckingham,
Doolittle & Burroughs, LLP, and Robert Briggs, on each of
the counts in Appellant’s complaint. This Court affirms.


{¶ 2} This appeal was previously dismissed due to
the lack of a final, appealable order. See Urda v.
Buckingham, Doolittle & Burroughs, LLP, 9th Dist. No.
22547, 2005-Ohio-5949. For ease of analysis, this Court
restates the factual background herein.

{¶ 3} Appellant is a professional, non-attorney with
training and experience in nonprofit programming and
management. In 1992, Appellees hired her as a part-time
at-will employee to perform research, writing and grant
evaluation for the GAR Foundation trust (“GAR”), with which
Appellees had significant managerial involvement. In 1996,
Appellee Robert Briggs appointed her as the Associate
Director of GAR. In that capacity, Appellant was
responsible for supervising GAR staff, developing proactive
initiatives and grantmaking. Appellee Briggs became the
Executive Director and co-trustee of GAR in 1994. He also
served as the President and Chairman of the Board of
Managers of Appellee Buckingham, Doolittle & Burroughs, LLP
(“BDB”) from 1990 until 2000. From 1995 until 2000,
Appellant assumed a significant role in the administration
and management of GAR matters for Appellees.

{¶ 4} In 2000, Appellee Briggs assumed a more active
role in the management and administration of GAR. A tension
arose between Appellant and Appellee Briggs in regard to
their roles in relation to GAR. In June 2001, Appellee
Briggs removed Appellant as the Associate Director of GAR
and reduced her responsibilities and supervisory role in
relation to GAR staff. Appellant alleged that she further
did not receive her traditional end-of-year raise and that
she received a smaller bonus than in previous years.
Appellant described her new role as a demotion, while
Appellees described it as a reassignment. In April 2002, the
day after Appellant participated in a GAR staff meeting,
Appellees terminated Appellant’s employment with BDB.

{¶ 5} On November 15, 2002, Appellant filed a
complaint alleging retaliation in violation of public
policy in count one, violation of R.C. 4113.52 in count
two, breach of contract in count three, promissory estoppel
in count four, fraudulent misrepresentation in count five,
and age discrimination in count six. Appellees filed a
motion for summary judgment, Appellant responded in
opposition and Appellees replied. The trial court granted
Appellees’ motion for summary judgment. Appellant timely
appealed, and this Court dismissed the matter for lack of a
final appealable order. On remand, the trial court entered
judgment on the remaining count in the complaint. Appellant
now appeals for a second time, raising two assignments of
error for review.


{¶ 6} As both of Appellant’s assignments of error
relate to the trial court’s grant of summary judgment, this
Court first details our standard of review.

{¶ 7} An appellate court reviews the award of
summary judgment de novo. Grafton v. Ohio Edison Co.
(1996), 77 Ohio St.3d 102, 105. In doing so, this Court
views the facts presented by the moving party in a light
most favorable to the non-moving party and resolve any doubt
in favor of the non-moving party. Viock v. Stowe-Woodward
Co. (1983), 13 Ohio App.3d 7, 12.

{¶ 8} Pursuant to Civ.R. 56(C), summary judgment is
proper if:

“(1) No genuine issue as to any material fact remains to
be litigated;

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

(3)it appears from the evidence that reasonable minds can
come to but one conclusion, and viewing such evidence most
strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to
that party.” Temple v. Wean United, Inc. (1977), 50 Ohio
St.2d 317, 327.

To prevail on a motion for summary judgment, the party
moving for summary judgment must be able to point to
evidentiary materials that show that there is no genuine
issue as to any material fact, and that the moving party is
entitled to judgment as a matter of law. Dresher v. Burt
(1996), 75 Ohio St.3d 280, 293. “Once a moving party
satisfies its burden of supporting its motion for summary
judgment with sufficient and acceptable evidence pursuant
to Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving
party may not rest upon the mere allegations or denials of
the moving party’s pleadings.” Elsass v. Crockett, 9th Dist.
No. 22282, 2005-Ohio-2142, at ¶ 15. Rather, the
non-moving party has a reciprocal burden of responding by
setting forth specific facts, demonstrating that a “genuine
triable issue” exists to be litigated for trial. State ex
rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 449.



{¶ 9} In her first assignment of error, Appellant
argues that the trial court erred in granting summary
judgment on her public policy tort. Specifically, Appellant
asserts that genuine issues of material fact remain
surrounding her claim. This Court disagrees.

{¶ 10} In Greeley v. Miami Valley Maint. Constrs.,
Inc. (1990), 49 Ohio St.3d 228, the Ohio Supreme Court
recognized a public policy exception to the employment at
will doctrine and held that an employee could maintain a
private cause of action against an employer when the
employee is discharged or disciplined for a reason which is
prohibited by statute. Id. at paragraph one of the
syllabus. The Greeley Court held that “[i]n Ohio, a cause
of action for wrongful discharge in violation of public
policy may be brought in tort.” Id. at paragraph three of
the syllabus. While Greeley dealt with a statutory based
claim, the court found that a private cause of action for
wrongful discharge need not be premised upon a violation of
a specific statute. Id. at 235.

{¶ 11} The Ohio Supreme Court explained Greeley in
Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St.3d 541
(overruled by Painter v. Graley (1994), 70 Ohio St.3d 377).
The Tulloh Court limited its previous exception to the
employee at will doctrine and held that “[a]bsent statutory
authority, there is no common-law basis in tort for a
wrongful discharge claim.” Tulloh, 62 Ohio St.3d at 546.

{¶ 12} In Anderson v. Lorain Cty. Title Co. (1993),
88 Ohio App.3d 367, this Court analyzed the Ohio Supreme
Court decisions of Greeley, Tulloh, and Provens v. Stark
Cty. Bd. of Mental Retardation & Developmental Disabilities
(1992), 64 Ohio St.3d 252, and found that a public policy
claim is available only when a violated statute does not
provide an effective remedy. Anderson, 88 Ohio App.3d at

{¶ 13} Subsequently, in Painter, the Ohio Supreme
Court revisited its exception to the employment at will
doctrine. The Painter Court overruled the Tulloh decision.
Painter, 70 Ohio St.3d at paragraph three of the syllabus.
In so doing, the Court re-affirmed Greeley and held “that
an exception to the employment-at-will doctrine is justified
where an employer has discharged his employee in
contravention of a `sufficiently clear public policy.'” Id.
at 384.

{¶ 14} In 2002, the Ohio Supreme Court was again
presented with the issue of statutory claims and public
policy claims. See Wiles v. Medina Auto Parts, 96 Ohio
St.3d 240, 2002-Ohio-3994. In Wiles, an employee alleged
that his employer constructively and wrongfully discharged
him in retaliation for the exercise of his rights under the
Family and Medical Leave Act (“FMLA”). Rather than bring
the statutory claim, the employee filed suit under the
common law, alleging that his discharge violated public
policy. After reviewing the remedies under the FMLA as well
as a public policy cause of action, the Ohio Supreme Court
determined that the public policy claim was “unnecessary to
vindicate the policy goals of the FMLA” and declined to
recognize such a claim. Id. at ¶ 1.

{¶ 15} In determining whether Wiles could maintain a
public policy claim, the court relied on the standard
established in Collins v. Rizkana (1995), 73 Ohio St.3d 65.
In Collins, the Ohio Supreme Court adopted a standard for
Ohio common law claims for wrongful termination in
violation of public policy. Id. at 69-70. To establish a
public policy wrongful termination claim the following
elements must be present:

“1. That [a] clear public policy existed and was
manifested in a state or federal constitution, statute or
administrative regulation, or in the common law (the
clarity element).

“2. That dismissing employees under circumstances like
those involved in the plaintiffs dismissal would
jeopardize the public policy (the jeopardy element).

“3. The plaintiff’s dismissal was motivated by conduct
related to the public policy (the causation element).

“4. The employer lacked overriding legitimate business
justification for the dismissal (the overriding
justification element).” (Emphasis sic.) (Citations and
quotations omitted). Id.

Collins also explained that the clarity and jeopardy
elements, “both of which involve relatively pure law and
policy questions, are questions of law to be determined by
the court.” (Citations and quotations omitted.) Id. at 70.
The factual elements of causation and overriding
justification, on the other hand, are generally to be
decided by a jury. Id.

{¶ 16} The Wiles Court then considered the jeopardy
element and explained that “[a]n analysis of the jeopardy
element necessarily involves inquiring into the existence
of any alternative means of promoting the particular public
policy to be vindicated by a common law wrongful discharge
claim.” (Citation omitted.) Id. at ¶ 15. The Court explained that:

“[T]here is no need to recognize a common-law action for
wrongful discharge if there already exists a statutory
remedy that adequately protects society’s interests * * *
[because] the public policy expressed in the statute would
not be jeopardized by the absence of a common-law
wrongful-discharge action in tort because an aggrieved
employee has an alternate means of vindicating his or her
statutory rights and thereby discouraging an employer from
engaging in the unlawful conduct.” (Citations omitted).
Id. at ¶ 15.

{¶ 17} On appeal, Appellant asserts that she
identified numerous public policies which were placed in
jeopardy when she was terminated. We disagree.

Tax Code

{¶ 18} Appellant argues that Appellees were in
violation of the tax code and that she was fired for
asserting such a fact. Initially, this Court notes that
Appellant has not identified a precise public policy
contained in the tax code upon which she is relying.
Assuming the clarity element was met, however, Appellant’s
claim still must fail.

{¶ 19} Appellant may not rely upon violations of the
tax code because if, as alleged by Appellant, Appellees
were violating the tax code, a criminal offense, Appellant
was obligated to follow the Whistleblower statute to
preserve her cause of action. See Davidson v. BP America,
Inc. (1997), 125 Ohio App.3d 643, 650 (finding that
allegations of violations of the tax code fall within the
scope of R.C. 4113.52).

“[T]he public policy embodied in the Whistleblower
Statute is limited. By imposing strict and detailed
requirements on certain whistleblowers and restricting the
statute’s applicability to a narrow set of circumstances,
the legislature clearly intended to encourage
whistleblowing only to the extent that the employee
complies with the dictates of R.C. 4113.52. As we held in
[Contreras v. Ferro Corp. (1995), 73 Ohio St.3d 244,]
syllabus: `In order for an employee to be afforded
protection as a `whistleblower,’ such employee must
strictly comply with the dictates of R.C. 4113.52.
Failure to do so prevents the employee from claiming the
protections embodied in the statute.’ * * * The obvious
implication of Contreras is that an employee who fails to
strictly comply with the requirements of R.C. 4113.52
cannot base a Greeley claim solely upon the public policy
embodied in that statute.” (Internal citations omitted.)
Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d
134, 153.

The trial court found that Appellant had not complied with
the provisions of R.C. 4113.52. On appeal, Appellant has
not challenged that finding. As such, she cannot base her
wrongful discharge claim upon the public policy embodied in
R.C. 4113.52.

{¶ 20} In addition, Appellant is neither an
accountant, nor charged with ensuring that the trust
accounting was properly performed. As such, it is highly
unlikely that Appellant may maintain a public policy tort
under this theory. See Smith v. Calgon Carbon Corp. (C.A.3,
1990), 917 F.2d 1338, 1344-45 (finding that it is highly
unlikely that a public policy tort will lie unless the
employee has been charged either by the employer or by law
with the specific responsibility of protecting the public
interest at issue). Furthermore,

“there is no statute requiring a citizen to report such
activity and by reporting it only to the individuals
within [the] business circle, [Appellant] neither
furthered nor affected a public interest. * * * [B]y
notifying only those in the private business relationship,
[Appellant] cannot claim that [her] discharge was
motivated by an attempt to contravene a [public policy].”
Zumot v. Data Management Co. (Ky.App. 2004), Case No.

As such, Appellant cannot rely upon any reports of alleged
violations of the tax code to support her public policy

Fiduciary Duty and Code of Professional Responsibility

{¶ 21} Appellant also argues that her termination
places the public policies embodied in the common law of
fiduciary duty and in the Code of Professional
Responsibility in jeopardy. Specifically, Appellant asserts
that she is entitled to bring a public policy tort because
these areas of law provide her no adequate remedy. This
Court disagrees.

{¶ 22} The Wiles Court made clear that an
examination of remedies is not always appropriate. “Where *
* * the sole source of the public policy opposing the
discharge is a statute that provides the substantive right
and remedies for its breach, the issue of adequacy of
remedies becomes a particularly important component of the
jeopardy analysis.” (Internal quotations omitted.) Wiles at
¶ 15. Such is not the case here. Appellant has not
claimed that she has any substantive rights as a result of
the alleged breaches of the common law regarding fiduciary
duty or the breaches of the Code of Professional
Responsibility. Accordingly, this Court analyzes the
efficacy of her claim under the more general approach
espoused by the Wiles Court which requires inquiry into the
existence of alternative means of promoting the particular
public policy. Id.

{¶ 23} Initially we note that Appellant admits that
she is a non-attorney and is unfamiliar with the specific
requirements for finding a breach of fiduciary duty or a
violation of the Code of Professional Responsibility.
Furthermore, Appellant concedes that it was not within the
realm of her job responsibility to determine these types of
violations, but rather she felt through her experience that
Appellees were doing something improper. As Appellant was
not charged with protecting the public interests at issue,
we find it highly unlikely that she has a valid public
policy cause of action under these theories. See Smith, 917
F.2d at 1344-45.

{¶ 24} Additionally, we agree with the Smith court
that when determining whether a public policy tort exists
for a particular set of facts, we must weigh “the public’s
interest in harmony and productivity in the workplace” with
the public’s interest in encouraging the conduct performed
by the plaintiff. Id. Herein, the record makes it clear
that Appellant’s repeated conduct interfered with the
harmony and productivity of the work place. Furthermore, as
noted above, her views were somewhat uninformed. She had no
experience with the rules contained in the Code of
Professional Responsibility; she was not skilled or
informed in the area of the law surrounding fiduciary
duties; and she was not charged with ensuring compliance
with either of these policies. Accordingly, the interest in
harmony and productivity in the workplace outweighs the
interest in Appellant speaking out on topics unrelated to
her job responsibility on topics with which she is

{¶ 25} Furthermore, there exist numerous
alternatives to promoting the public policies relied upon
by Appellant. The Preamble to the Ohio Code of Professional
Responsibility charges attorneys with policing their own
activities: “The legal profession is self-governing in that
the Ohio Constitution vests in the Supreme Court of Ohio
the ultimate authority to regulate the profession.”
Accordingly, the policy espoused by the Ohio Code of
Professional Responsibility has a built-in mechanism for
protecting the public’s interest. Additionally, the Ohio
Supreme Court has adopted a system through which violations
of the Code may be litigated and publicly resolved. In
addition, attorneys themselves are charged with a mandatory
duty to report violations of the Code. See DR 1-103(A).

{¶ 26} On the other hand, Appellant was not an
attorney. As such, she had no legal duty to report alleged
violations of the Rules. Further, given her unfamiliarity
with the rules, her conduct only served to create
disharmony in the workplace. Appellant approached attorneys
and reported what she believed to be ethical violations.
Her concerns were reviewed and found to lack merit. Rather
than accepting the opinions of practicing attorneys who
were familiar with the Code, Appellant continued to raise
her concerns at every opportunity. Appellant repeatedly
refused to accept the conclusions of her employer, despite
the fact that they were more qualified to determine whether
the Code had been violated. Appellees, as attorneys, gave
their professional opinions to Appellant that no Code
violations had occurred. As attorneys, Appellees were under
a continuing obligation to report any such violations. DR
1-103(A). As such, permitting Appellant’s termination for
having made these statements does not serve to jeopardize
the broad public policy contained in the Code of
Professional Responsibility, i.e., ensuring the public that
it will receive high quality legal services and preserving
the integrity of the legal profession. As noted above,
there exist multiple, effective alternatives for protecting
the public policy contained in the Code. Finally, while not
dispositive, this Court notes that upon research we have
found no case in any jurisdiction that has permitted a
public policy tort based upon the Code provisions relied
upon by Appellant. Accordingly, Appellant has not met the
jeopardy prong of her public policy claim as it relates to
her reliance upon the Code of Professional Responsibility.

{¶ 27} Similar to her reliance on the Code of
Professional Responsibility, Appellant’s reliance upon the
common law surrounding a fiduciary duty is misplaced.
Appellant again admitted that she was not charged with
ensuring Appellees’ compliance with their fiduciary duty.
Furthermore, while Appellant was a professional, she
admitted that she had no expertise in the area of fiduciary
duty. Rather, she again gave her “informed view” that
Appellees were violating their fiduciary duty based upon
essentially her intuition. Appellees determined that
Appellant’s assertions lacked merit. Appellant refused to
accept this response and continued to voice her complaints.

{¶ 28} Appellant has offered no rationale to support
her conclusion that permitting her termination jeopardizes
the public policy contained in the common law surrounding
fiduciary duty. Specifically, Appellant asserts that Ohio’s
common law evinces the clear public policy that fiduciaries
must always act in the best interests of the principal. See
In re Estate of Binder (1940), 137 Ohio St. 26. Appellant
has failed to identify how her discipline jeopardizes this

{¶ 29} We again note that there exist multiple
alternatives to promoting this policy outside of
Appellant’s conduct. The principal may request an
accounting or an audit of the trust at any time.
Furthermore, the principal may maintain a lawsuit for
breach of fiduciary duty if such a breach has occurred. As
such, we cannot find that the public policy surrounding the
duty of a fiduciary is placed in jeopardy by Appellant’s
discipline. Finally, like her above claim, this Court notes
that we have found no case in any jurisdiction which has
permitted a public policy tort on facts even remotely
analogous to those alleged by Appellant.

{¶ 30} We are not presented with a case in which
Appellant was obligated to comply with a duty or refused to
violate a duty. See Perritt, The Future of Wrongful
Dismissal Claims: Where Does Employer Self Interest Lie?
(1989), 58 U. Cin. L. Rev. 397, 404-407 (compiling cases).
Rather, Appellant repeatedly raised concerns which were
found by her employers, attorneys, to lack merit. Through
her lawsuit, Appellant effectively seeks license to
disregard in their entirety the conclusions reached by her
employer. Such a license would effectively eliminate the
ability of law firms to discipline non-attorney employees
for repeatedly disrupting the work place by raising issues
which are neither within their realm of knowledge nor
within their job responsibilities. We cannot countenance
such a result. Appellant has not established that any
public policy was placed in jeopardy as a result of her
discipline. Accordingly, she has failed to demonstrate an
essential element of her public policy tort claim.
Appellant’s first assignment of error is overruled.


JURY.” (emphasis sic.)

{¶ 31} In her second assignment of error, Appellant
argues that the trial court erred in granting summary
judgment on her age discrimination claim. We disagree.

{¶ 32} In her brief, Appellant argues at length that
she was terminated for voicing her concerns about the
handling of the trust. In her final assignment of error,
Appellant states in conclusory fashion that her termination
was motivated by age discrimination. In this assignment of
error, Appellant has not cited to any portion of the

{¶ 33} An appellant has the burden on appeal. See
App.R. 16(A)(7); Loc.R. 7(A)(7). “It is the duty of the
appellant, not this court, to demonstrate his assigned
error through an argument that is supported by citations to
legal authority and facts in the record.” State v. Taylor
(Feb. 9, 1999), 9th Dist. No. 2783-M, at *3. Pursuant to
App.R. 16(A), an appellant’s brief shall include the

“(7) An argument containing the contentions of the
appellant with respect to each assignment of error
presented for review and the reasons in support of the
contentions, with citations to the authorities, statutes,
and parts of the record on which appellant relies.”
(Emphasis added.)

This Court may disregard arguments if the appellant fails to
identify the relevant portions of the record from which the
errors are based. See App.R. 12(A)(2); Loc.R. 7(F). While
Appellant’s brief contains numerous citations to the record
in her statement of facts, in State v. Duffield, 9th Dist.
No. 22634, 2006-Ohio-1823, we found that such a structure
does not comport with the appellate rules. Id. at ¶
11. It is not the function of this Court to extract the
relevant facts from Appellant’s statement of facts and
apply them to the appropriate assignment of error. Such a
burden lies with Appellant.

{¶ 34} In her final assignment of error, Appellant
has not even alleged the age of her replacement or even the
date of her termination. Further, while she alleges that
her replacement was inferior, she cites to no portion of
the record to demonstrate this fact and she has not
explained in any meaningful manner the law as it applies to
the facts of her age discrimination claim. She simply
concludes that she sufficiently rebutted the reasons given
for her termination. Accordingly, Appellant has not met her
burden of demonstrating error on appeal. Appellant’s second
assignment of error is overruled.


{¶ 35} Appellant’s assignments of error are
overruled. The judgment of the Summit County Court of
Common Pleas is affirmed.

Judgment affirmed.

The Court finds that there were reasonable grounds for this

We order that a special mandate issue out of this Court,
directing the Court of Common Pleas, County of Summit,
State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the
mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall
constitute the journal entry of judgment, and it shall be
file stamped by the Clerk of the Court of Appeals at which
time the period for review shall begin to run. App.R.
22(E). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and
to make a notation of the mailing in the docket, pursuant
to App.R. 30.

Costs taxed to Appellant.