Page 24 376 III. App. 3d 599, *; 876 N.E.2d 129, **; 2007 III. App. LEXIS 962, ***; 315 III. Dec. 129 "This guaranty is irrevocable, absolute. present. continuing and unconditional. and the obligation of (the Swentos) shall not be released or affected by (a) any extensions of time. indulgences or modifications r"2O] which Landlord may extend with Tenant in the performance of said Lease: (b) any failure of Landlord to enforce any of the conditions of said Lease: (c) any assignment of the lease by Tenant; or (d) any COMM which Landlord may give to such assignment." The personal guaranty further provided that the "guaranty shall also inure to the benefit of Landlord's successors, assigns, and legal representatives." In light of the express provisions of the guaranty, we find that by agreeing that their obligation would continue even if the landlord granted extensions of time to the tenant or otherwise modified the lease, the Swentos granted the landlord the right to make such extensions or modifications without impairing the validity of the guaranty. See Zirp-Bumham, 356 III. App. 3d at 605 (where language of original guaranty provided that the guarantor "guarantee[d] the landlords, its successors and assigns, the prompt and full payment of all Rent,' 'notwithstanding any amendment, addition, assignment, sublease, transfer, renewal, extension or other modification of the Lease,"' (emphasis omitted) the guarantor was not relieved from personal liability due to an allegedly erroneous listing of [..21] the trustee and landlord on a second reaffirmation of the guaranty because the landlord did not require the guarantor's reaffirmation to receive the benefit of the original guaranty under the language of that original guaranty). We therefore conclude that the Swentos were not discharged from the guaranty due to the modifications contained in the Agreement. B. Affirmative Defense of Estoppel by Waiver The Swentos next contend that the circuit court erred in granting ["610] CEC's motion for a directed verdict where it denied the Swentos the opportunity to present their affirmative defense of estoppel by waiver. The Swentos argue that CEC is estopped from seeking a judgment against the Swentos where CEC entered into the Agreement solely with Jeepers and Jeepers ['"139] Illinois that superceded the lease. The Swentos maintain that neither CEC's forcible eviction and detainer action nor the Agreement contemplated the Swentos as guarantors to the lease and CEC should be prevented from reverting to the 1991 personal guaranty. In the alternative, the Swentos argue that CEC and Jeepers Illinois entered into an executory accord that prevents CEC from attempting to collect the same debt from the Swentos as a ("1'22] nonparty to that accord. CEC argues that the Swentos waived these purported defenses by failing to raise them before the trial court. We agree. The record shows that the Swentos' counterclaim and affirmative defenses included promissory estoppel, in which the Swentos alleged that CEC was estopped from asserting its rights under the lease because it broke off negotiations to extend the lease for an additional time period after Jeepers Illinois failed to pay overdue rent. However, the Swentos did not present to the circuit court the estoppel by waiver arguments that they advance on appeal and these arguments are therefore waived. See Robidoux v. Oliphant, 201 III. 2d 324, 344, 775 N.E.2d 987, 266 III. Dec. 915 (2002). Waiver aside, we find that the Swentos arguments are without merit. The Swentos first assert that CEC is estopped from seeking a judgment against the Swentos, where CEC entered into the Agreement solely with Jeepers and Jeepers Illinois and where CEC did not name the Swentos in the forcible eviction and detainer action, ignores the fact that, as already discussed, the personal guaranty's language provided that the guaranty would For internal use only SDNY_GM_00054720 CONFIDENTIAL - PURSUANT TO FED. R.c2C;IN(F IDENTIAL DB-SDNY-00 17544 EFTA_00 165290 EFTA01295513

Page 25 376 III. App. 3d 599, *; 876 N.E.2d 129, **; 2007 III. App. LEXIS 962, ***; 315 III. Dec. 129 remain intact regardless of changes and modifications to the lease. In light of [***23] the express provisions of the guaranty, the Swentos were not discharged by the subsequent Agreement and CEC was not required to receive a reaffirmation by the Swentos in the Agreement to receive the benefit of the original guaranty. See Zirp-Burnham, 356 III. App. 3d at 605-06. The Swentos' second claim, that the Agreement constituted an executory accord that satisfied the tenant's obligation under the lease, is also without merit. [HN6] "An 'executory accord' is an agreement to accept at some future time a stipulated performance as satisfaction of an obligation." Collection Professionals, Inc. v. Logan, 296 III. App. 3d 959, 964, 695 N.E.2d 1344, 231 III. Dec. 225 (1998). [HN7] "[A]n executory accord is unenforceable and will not bar enforcement of the original obligation unless: (1) the creditor has clearly accepted the new promise of future performance, itself, and not the ultimate performance of it, as satisfaction, and (2) the new promise r611] is based upon new consideration." Collection Professionals, Inc., 296 III. App. 3d at 964. Here, the Agreement specifically provided in paragraph 8 that "Tenant covenants and agrees that the Lease is valid, and in full force and effect" and that "the terms and provisions of the Lease are hereby ["*"24] ratified, reaffirmed and confirmed." The Agreement further provided, in paragraph 2,: "Tenant covenants and agrees that the time extensions described in this Paragraph 2 do not and shall not constitute a waiver, modification or abrogation of Tenant's obligations under the Lease to timely and fully pay to Landlord all other Rent amounts when due during the Term and to otherwise timely and fully perform all covenants and obligations described in the Lease during the Term," ("140] The Agreement therefore did not provide that CEC accepted a new promise of future performance as satisfaction for the tenant's obligations under the lease, but, rather, the Agreement consisted of an extension of time and modifications of the lease. The parties also agreed in the Agreement that the lease remained in full force and effect. In addition, any promise to provide a release of the original lease would not have been based upon new consideration because Jeepers Illinois already owed the overdue rent payments to CEC pursuant to the lease and did not provide new consideration. We therefore conclude that there is nothing in the record demonstrating that CEC intended to accept the Agreement as satisfaction for the ["**25] tenant's obligations under the lease. C. Unconsionability The Swentos lastly contend that it is unconscionable to hold them liable under the Agreement because they were not parties to the Agreement and had no knowledge of the Agreement. Contrary to the Swentos' assertion, the circuit court found them liable pursuant to the terms of the personal guaranty, in which they expressly agreed to be jointly and severally liable for the tenant's obligations under the lease. GEC's claims in this case were based on Jeepers Illinois' failure to make rent payments as obligated under the lease and its failure to return the leased premises to the condition required by the lease. As previously discussed, the Agreement did not materially alter the obligations of the tenant so as to discharge the Swentos from their obligations under the personal guaranty. In addition, the personal guaranty granted the landlord the right to make extensions or modifications, such as those provided in the Agreement, without impairing the validity of For internal use only SDNY_GM_00054721 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0017545 EFTA_00165291 EFTA01295514

Page 26 376 III. App. 3d 599, *; 876 N.E.2d 129, **; 2007 III. App. LEXIS 962, ***; 315 III. Dec. 129 the personal guaranty. Therefore, we find nothing unconscionable about the enforcement of the personal guaranty in this case. Ill. Conclusion [1.612] For the above reasons, we affirm the r**26] judgment of the circuit court. Affirmed. NEVILLE and MURPHY, JJ., concur. For internal use only SDNY_GM_00054722 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SDNY-00 17546 EFTA_00 165292 EFTA01295515

Page 27 2004 Ohio 6250, *; 2004 Ohio App. LEXIS 5682, ** Hanlin-Rainaldi Construction Corp., Plaintiff-Appellant, v. Jeepers!, Inc., Defendant-Appellee. No. 03AP-851 COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY 2004 Ohio 6250; 2004 Ohio App. LEXIS 5682 November 23, 2004, Rendered PRIOR HISTORY: r*ii C.P.C. No. 02CVH-5622 DISPOSITION: Judgment affirmed. CASE SUMMARY: PROCEDURAL POSTURE: Appellant construction company sought review of a judgment of the Franklin County Court of Common Pleas (Ohio). which granted partial summary judgment in favor of appellee indoor animated theme park operator in the company's action. which alleged wrongful withholding of payments. breach of contract, and unjust enrichment. Summary judgment was granted to the company on several of the withholding payment claims and the breach of contract claim. OVERVIEW: The park operator entered into a lease agreement to operate a park The operator also entered into agreements with the construction company for work on the specific leasehold. and with a general contractor. However. the company filed a lien against the leasehold for unpaid fees Thereafter. the parties entered into a settlement agreement Upon the operator's failure to pay under the settlement. the company filed suit against the operator and others. and another settlement was entered into. The company again sued the operator. The trial court granted summary judgment for the company on two unpaid notes and for breach of contract. and for the operator on one note and for unjust enrichment. On appeal. the court found that North Carolina substantive law applied The company's claim that there was a modification or waiver of the release language in the settlement agreement was not properly reviewable, as it was not raised in the trial court. The language of the settlement agreement plainly and unambiguously discharged the operator from its obligation under one note, and accordingly, the court was not free to entertain the company's claim that a release was not the parties' intent. OUTCOME: The court affirmed the judgment of the trial court. For internal use only SDNY_GM_00054723 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17547 EFTA_00 165293 EFTA01295516

Page 28 2004 Ohio 6250, a; 2004 Ohio App. LEXIS 5682, ea CORE TERMS: summary judgment, settlement agreement, assignment of error, reply brief. parol evidence rule, matter of law, construction projects, upfit, leasehold, plainly, movant, reply, choice of law, reasonable basis, novo, subsequent conduct, wrongfully withheld, contractor, discharged, assign, procedural law, applicable law, substantial relationship, fundamental policy, material interest, leave to file, genuine issues, initial burden, citations omitted, unambiguous LexisNexis(R) Headnotes Contracts Law > Contract Conditions & Provisions > Forum Selection Clauses [HN11 The Supreme Court of Ohio has held that the law of the state chosen by the parties to govern their contractual rights and duties will be applied unless either the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or application of the law of the chosen state would be contrary to the fundamental policy of a state having a greater material interest in the issue than the chosen state and such state would be the state of the applicable law in the absence of a choice by the parties. Civil Procedure > Federal & State Interrelationships > Choice of Law > General Overview [HN2] Traditional choice of law principles provide that the law of the forum state governs on procedural matters. Civil Procedure > Appeals > Briefs [HN3] A reply brief is merely an opportunity to reply to the brief of appellee. A reply brief may not raise new assignments, which were omitted from an appellant's original brief, especially where leave to file a new assignment was not sought from the appellate court. Civil Procedure > Appeals > Reviewability > Preservation for Review [HN4] Issues not raised in a lower court and not there tried and which are completely inconsistent with and contrary to the theory upon which appellants proceeded below cannot be raised for the first time on review. Civil Procedure > Summary Judgment > Appellate Review > Standards of Review Civil Procedure > Appeals > Standards of Review> De Novo Review [HN5] Appellate review of a lower courts granting of summary judgment is de novo. De novo review means that an appellate court uses the same standard that a trial court should have used, and the appellate court examines the evidence to determine whether as a matter of law no genuine issues exist for trial. Civil Procedure > Summary Judgment > Standards > Appropriateness Civil Procedure > Summary Judgment > Standards > Genuine Disputes Civil Procedure > Summary Judgment > Standards > Materiality [HN6] Summary judgment is proper when a movant for summary judgment demonstrates: (1) no genuine issue of material fact exists; (2) the movant is entitled to judgment as a For internal use only SDNY_GM_00054724 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(F IDENTIAL DB-SDNY-00 17548 EFTA_00 165294 EFTA01295517

Page 29 2004 Ohio 6250, *; 2004 Ohio App. LEXIS 5682, ** matter of law; and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Ohio R. Civ. P. 56. Civil Procedure > Summary Judgment > Burdens of Production & Proof > Movants Civil Procedure > Summary Judgment > Standards > Appropriateness Civil Procedure> Summary Judgment > Standards > Genuine Disputes [HN7] Under Ohio R. Civ. P. 56(C), a movant bears the initial burden of informing a trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Once a movant discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or as otherwise provided in Rule 56, with specific facts showing that a genuine issue exists for trial. Contracts Law > Contract Interpretation > Parol Evidence > General Overview Evidence > Documentary Evidence > Parol Evidence [HN8] The parol evidence rule is not a rule of evidence but of substantive law. It prohibits the consideration of evidence as to anything which happened prior to or simultaneously with the making of a contract which would vary the terms of the agreement. Generally, the parol evidence rule prohibits the admission of evidence to contradict or add to the terms of a clear and unambiguous contract. Contracts Law > Contract Interpretation > Parol Evidence > General Overview [HN9] Under North Carolina law, when the language of a contract is clear and unambiguous, construction of the agreement is a matter of law for a court, and the court cannot look beyond the terms of the contract to determine the intentions of the parties. Therefore, it must be presumed the parties intended what the language used clearly expresses, and the contract must be construed to mean what on its face it purports to mean. Contracts Law > Contract Interpretation > General Overview [HN10] Under North Carolina law, where the provisions of a contract are plainly set out, a court is not free to disregard them and a party may not contend for a different interpretation on the ground that it does not truly express the intent of the parties. COUNSEL: Bricker & Eckler, LLP, and James J. Hughes, Ill, for appellant. Porter, Wright, Morris & Arthur, LLP, Jack R. Pigman, Jay A. Yurkiw and Bryan R. Faller, for appellee. JUDGES: PETREE, J. KLATT and WRIGHT, JJ., concur. OPINION BY: PETREE OPINION For internal use only SDNY_GM_00054725 CONFIDENTIAL - PURSUANT TO FED. R.ctc;IN(f IDENTIAL DB-SONY-0017549 EFTA_00 165295 EFTA01295518

Page 30 2004 Ohio 6250, a; 2004 Ohio App. LEXIS 5682, ea (REGULAR CALENDAR) APPEAL From the Franklin County Court of Common Pleas. PETREE, J. [' P1] Plaintiff-appellant, Hanlin-Rainaldi Construction Corporation ("Hanlin-Rainaldi"), appeals from a judgment of the Franklin County Court of Common Pleas that granted partial summary judgment in favor of defendant-appellee, Jeepersl, Inc. ("Jeepers"). For the following reasons, we affirm. [' P2] Jeepers owns and operates indoor animated theme parks that are designed to serve families with children who are 12 years old or younger. Within these indoor animated theme parks are amusement park rides, soft play areas, skill games, and family dining. [' P3] In August 1999, Jeepers and Concord Mills Limited Partnership ("Concord Mills") entered into a ten-year lease agreement with the intention that Jeepers would operate a business establishment at a leasehold in Concord Mills Mall in Concord, North Carolina. [*1'2] Under this agreement, after Jeepers satisfied conditions precedent, Concord Mills apparently agreed to pay Jeepers an allowance for construction improvements. [' P4] In August 1999, Jeepers also entered into an agreement with Hanlin-Rainaldi, an Ohio corporation that Jeepers apparently had retained on several previous occasions for other construction projects. According to this agreement, Jeepers agreed to pay $ 1,100,000 to Hanlin-Rainaldi for upfitting the leasehold at Concord Mills Mall. r P5] Effective August 1999, Jeepers also contracted with Win & Associates, Inc. Min & Associates"), a general contractor in North Carolina. According to this agreement, Jeepers appointed Win & Associates to be the general contractor for the Concord Mills Mall project and directed them to use Hanlin-Rainaldi as the major prime contractor for the Concord Mills Mall project. The project agreement between Jeepers and Win & Associates also required, among other things, that Jeepers: (1) assign its agreement with Hanlin-Rainaldi to Win & Associates for the purpose of satisfying North Carolina licensing and permit requirements; (2) pay the contract sum as provided in its agreement with Hanlin-Rainaldi ["3] directly to Hanlin-Rainaldi; and (3) pay a management fee to Win & Associates. [' P6] Jeepers, however, failed to pay Hanlin-Rainaldi for services rendered, thereby breaching its agreement with Hanlin-Rainaldi. To perfect its interest, Hainlin-Rainaldi filed a lien in North Carolina against the leasehold. [' P7] In May 2000, desiring to settle any and all claims resulting from the construction project that the parties had against each other, Jeepers and Hanlin-Rainaldi entered into a settlement agreement, wherein Jeepers acknowledged it owed $ 708,084 to Hanlin- Rainaldi. Pursuant to this agreement, Jeepers promised to pay $ 440,000 upon execution of the agreement, with the remaining balance to be paid by: (1) a promissory note in the amount of $ 160,000 ("Note 1"); and (2) a cognovit note in the amount of $ 108,084. In exchange, Hanlin-Rainaldi agreed to release the lien against the leasehold at Concord Mills Mall. I Jeepers has correctly observed that the copy of the May 2000 agreement in the record was not signed or dated by Hanlin- Rainaldi and lacked some exhibits that were referenced in the settlement agreement. (Jeepers' Reply Memorandum in Support For internal use only SDNY_GM_00054726 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17550 EFTA_00 165296 EFTA01295519

Page 31 2004 Ohio 6250, a; 2004 Ohio App. LEXIS 5682, n of Its Motion for Summary Judgment, at 4.) Nevertheless, before the trial court. Jeepers did not affirmatively deny that 4 was a party to this settlement agreement. nor did it move to stnke this copy of the purported settlement agreement. See, generally, Churchwell v. Red Roof Inns, Inc. (Mar. 24. 1998). Franklin App. No. 97APE08-1125. at M. 1. 1998 Ohio App. LEXIS 1122. r.41 2 According to Jeepers, Hanlin-Rainaldi did riot remove its ken until after Hanlin-Rainaldi filed suit in North Carolina and another settlement agreement in August 2001 was executed_ (Jeepers Reply Memorandurn in Support of Its Motion for Summary Judgment, at 4 In. 3.) r P8] Jeepers failed to pay the $ 440,000 that it promised to pay upon execution of the May 2000 settlement agreement. Thereafter, Hanlin-Rainaldi sued Jeepers, Concord Mills, and Win & Associates in a North Carolina court. rP9] Additionally, although Jeepers made payments towards satisfying its obligation under Note 1, which continued until 2002, r Jeepers ultimately failed to totally satisfy its obligation under Note 1. Jeepers did, however, satisfy the cognovit note. 3 According to Hanlin-Rainaldi. Jeepers failed to make a monthly payment on April 15, 2002, and then failed to make any subsequent payments. (Affidavit of Kristy Krull, Comptroller of Hanlin-Rainaldi, dated October 30, 2002, at P7.) Jeepers admits it made payments in January and February 2002. (Reply Memorandum of Defendant Jeeperst, Inc. in Support of its Motion For Summary Judgment, at 7. fn. 8.) r5] r P10] In August 2001, Hanlin-Rainaldi, Jeepers, and Concord Mills entered into a settlement agreement to resolve disputed claims. Concurrent with the execution of this settlement agreement, Jeepers executed two promissory notes to Hanlin-Rainaldi in the amount of $ 165,000 ("Note 2") and $ 75,000 ("Note 3"), respectively. Additionally, concurrent with the execution of the second agreement, Concord Mills agreed to put $ 75,000 in escrow for the benefit of Jeepers to be disbursed to Hanlin-Rainaldi after it released its lien and dismissed its lawsuit. Hanlin-Rainaldi acknowledges that it received the $ 75,000 that was held in escrow; however, according to Hanlin-Rainaldi, Jeepers defaulted on Notes 2 and 3. r P11] On May 20, 2002, Hanlin-Rainaldi sued Jeepers in the Franklin County Court of Common Pleas, asserting five causes of action, that Jeepers: (1) wrongfully withheld payment under Note 1 and was liable for all amounts due under this note; (2) wrongfully withheld payment under Note 2 and was liable for all amounts due under this note; (3) wrongfully withheld payment under Note 3 and was liable for all amounts due under this note; (4) materially breached the agreement r.6] of August 2001 and was liable for the balances due under Notes 2 and 3; and (5) had been unjustly enriched and was liable in an amount equal to the outstanding balances that were due under Notes 1, 2, and 3. Jeepers answered the complaint, wherein it admitted to executing the notes but generally denied other allegations in the complaint. r P12] Hanlin-Rainaldi later moved for summary judgment as to all claims. Jeepers opposed this motion. r P13] Later, Jeepers moved for summary judgment concerning Hanlin-Rainaldi's claims that arose under the August 2001 agreement and Notes 2 and 3, claiming that the agreement and Notes 2 and 3 were executed under economic duress. In the alternative, For internal use only SDNY_GM_00054727 CONFIDENTIAL - PURSUANT TO FED. R.cON(F IDENTIAL DB-SDNY-0017551 EFTA_00 165297 EFTA01295520

Page 32 2004 Ohio 6250, *; 2004 Ohio App. LEXIS 5682, ** Jeepers sought judgment relating to Note 1, claiming that the agreement discharged Jeepers of this debt. Hanlin-Rainaldi opposed Jeepers' motion for summary judgment. r P14] On April 1, 2003, the trial court rendered a decision, wherein it granted in part and denied in part Hanlin-Rainaldi's motion for summary judgment and granted Jeepers' motion for summary judgment; however, this decision was later vacated. Pursuant to Civ.R. 53 and local rule, the trial court r 7] later referred the matter to a magistrate for a mediation conference. After reaching an impasse, the matter was referred for further motion practice and trial preparation. r P151 On July 24, 2003, the trial court rendered judgment wherein it granted in part and denied in part both Hanlin-Rainaldi's and Jeepers' motions for summary judgment. In its judgment, the trial court found in favor of Hanlin-Rainaldi concerning its claims that Jeepers breached the August 2001 agreement and was liable to Hanlin-Rainaldi under Notes 2 and 3. However, the trial court found in favor of Jeepers as to Hanlin-Rainaldi's claims that Jeepers failed to satisfy its obligation under Note 1 and Jeepers was unjustly enriched. From this judgment, Hanlin-Rainaldi appeals and asserts a single assignment of error: The trial court erred as a matter of law in applying the parol evidence rule to bar evidence of Appellee's subsequent conduct r P16] In its reply brief, Hanlin-Rainaldi alternatively asserts: The trial court erred as a matter of law by failing to consider evidence of Appellee's subsequent payments on the note to show intent and meaning, including whether such conduct constituted rit] a modification or waiver of the terms of the release language in the settlement agreement. r P17] We will first address which substantive law and procedural law apply to this cause. r P113] [HN1] The Supreme Court of Ohio has held: The law of the state chosen by the parties to govern their contractual rights and duties will be applied bless either the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or application of the law of the chosen state would be contrary to the fundamental policy of a state having a greater material interest in the issue than the chosen state and such state would be the state of the applicable law in the absence of a choice by the parties. Schulke Radio Productions, Ltd. v. Midwestern Broadcasting Co. (1983), 6 Ohio St.3d 436, 6 Ohio B. 480, 453 N.E.2d 683, syllabus; see, also, Jarvis v. Ashland Oil, Inc. (1985), 17 Ohio St.3d 189, 17 Ohio B. 427, 478 N.E.2d 786, syllabus; Restatement of the Law 2d, Conflict of Laws (1971) 561, Section 187. Accord Torres v. McClain (2000), 140 N.C. App. 238, 241, 535 S.E.2d 623, quoting Behr v. Behr (1980), 46 N.C.App. 694, 696, 266 S.E.2d 393, ("9] citing Restatement of the Law 2d, Conflict of Laws (1971) 561, Section 187 (stating that "the parties' choice of law is generally binding on the interpreting court as long as they had a reasonable basis for their choice and the law of the chosen State does not violate a fundamental policy of the state of otherwise applicable law."). r P19] Section 91. of Hanlin-Rainaldi, Jeepers, and Concord Mills' August 2001 agreement provides that: "This Agreement shall be governed by the laws of the State of North Carolina." In this case, North Carolina is the locus of Jeepers' leasehold and the For internal use only SDNY_GM_00054728 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17552 EFTA_00 165298 EFTA01295521

Page 33 2004 Ohio 6250, *; 2004 Ohio App. LEXIS 5682, ** construction project, and we find it is the forum with the most significant contacts to the case. Accordingly, we conclude North Carolina has a substantial relationship to the settlement agreement, and there exists a reasonable basis for the parties' choice of law provision in their contract. Furthermore, based upon our review of the record, we cannot conclude that Ohio would have a greater material interest than North Carolina in the outcome of this case. Accordingly, we conclude North Carolina substantive law applies to the August 2001 agreement. r P20] Furthermore, because [HN2] traditional choice r10] of law principles provide that the law of the forum state governs on procedural matters, Keeton v. Hustler Magazine, Inc. (1984), 465 U.S. 770, 778, fn. 10, 104 S. Ct. 1473, 79 L. Ed. 2d 790; Lawson v. Valve- Trol Co. (1991), 81 Ohio App.3d 1, 4, 610 N.E.2d 425, jurisdictional motion overruled, 61 Ohio St. 3d 1422, 574 N.E.2d 1092; Restatement of the Law 2d, Conflict of Laws (1971) 350, Section 122, we conclude Ohio procedural law applies to this cause. r P211 In its reply brief, Hanlin-Rainaldi has asserted an alternative assignment of error, namely, that the August 2001 agreement was modified or, alternatively, that release language in this agreement was waived. r P22] [HN3) "[A] reply brief is merely an opportunity to reply to the brief of appellee. * * * A reply brief may not raise new assignments, which were omitted from appellant's original brief, especially where leave to file a new assignment was not sought from this court." Calex Corp. v. United Steelworkers of America (2000), 137 Ohio App.3d 74, 80, 738 N.E.2d 51, dismissed, appeal not allowed, 89 Ohio St. 3d 1465, 732 N.E.2d 998; see, also, Trout v. Ohio Dept riii of Edn., Franklin App. No. 02AP-783, 2003 Ohio 987, at P26; Belcher v. Ohio State Racing Comm., Franklin App. No. 03AP-786, 2004 Ohio 1278, at P18, appeal not allowed, 103 Ohio St. 3d 1405, 2004 Ohio 3980, 812 N.E.2d 1288; Julian v. Creekside Health Ctr., Mahoning App. No. 03MA21, 2004 Ohio 3197, at P81; Tipp City v. Watson, Miami App. No. 02CA43, 2003 Ohio 4836, at P28; Brouse v. Old Phoenix Natl. Bank of Medina (1985), 25 Ohio App. 3d 9, 10, fn. 1, 25 Ohio B. 38, 495 N.E.2d 42; Sheppard v. Mack (1980), 68 Ohio App.2d 95, 97, fn. 1, 427 N.E.2d 522. See, also, App.R. 16(A)(3) and (C). r P23] Additionally, [HN4] "issues not raised in the lower court and not there tried and which are completely inconsistent with and contrary to the theory upon which appellants proceeded below cannot be raised for the first time on review." Republic Steel Corp. v. Cuyahoga Cty. Bd. of Revision (1963), 175 Ohio St. 179, 192 N.E.2d 47, syllabus; see, also, State ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections (1992), 65 Ohio St.3d 175, 177, 602 N.E.2d 622 (observing that "appellant cannot change the theory of his case and present these new arguments r 12] for the first time on appeal"); Shaffer v. OhioHealth Corp., Franklin App. No. 03AP-102, 2004 Ohio 63, at P13; State ex rel. Phillips v. Capots (Sept. 22, 1994), Franklin App. No. 94APE04-499, 1994 Ohio App. LEXIS 4142, citing Miller v. Wikel Mfg. Co., Inc. (1989), 46 Ohio St.3d 76, 78, 545 N.E.2d 76. r P24] In the instant case, although this court granted Hanlin-Rainaldi's motion for leave to file a reply brief, Hanlin-Rainaldi did not seek leave to assert an alternative assignment of error in its reply brief. Additionally, before the trial court, Hanlin-Rainaldi did not raise whether Jeepers' payments on Note 1 following the August 2001 agreement constituted a modification or waiver of the release language in the settlement agreement. Accordingly, For internal use only SDNY_GM_00054729 CONFIDENTIAL - PURSUANT TO FED. R.cON(F IDENTIAL DB-SDNY-00 17553 EFTA_00 165299 EFTA01295522

Page 34 2004 Ohio 6250, *; 2004 Ohio App. LEXIS 5682, ** we conclude that Hanlin-Rainaldi's alternative assignment of error as asserted in its reply brief is improperly raised. Therefore, finding that Hanlin-Rainaldi's alternative assignment of error is improperly raised, we decline to address it. r P25] [HN5] Appellate review of a lower court's granting of summary judgment is de novo. Mitnaul v. Fairmount Presbyterian Church, 149 Ohio App.3d 769, 2002 Ohio 5833, at P27, 778 N.E.2d 1093. " r 13) 'De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial.' " Id., quoting Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 701 N.E.2d 1023, citing Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St.2d 116, 119-120, 413 N.E.2d 1187, certiorari denied (1981), 452 U.S. 962, 101 S. Ct. 3111, 69 L. Ed. 2d 973. r P26] [FINS] Summary judgment is proper when a movant for summary judgment demonstrates: (1) no genuine issue of material fact exists; (2) the movant is entitled to judgment as a matter of law; and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St. 3d 181, 183, 1997 Ohio 221, 677 N.E.2d 343. ITV] [HN7] Under Civ.R. 56(C), a movant bears the initial burden of informing the trial court of the basis for the motion r 14] and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 1996 Ohio 107, 662 N.E.2d 264. Once a movant discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial. Id.; Vahila v. Hall (1997), 77 Ohio St.3d 421, 430, 1997 Ohio 259, 674 N.E.2d 1164; Civ.R. 56(E). r P28] In its assignment of error, Hanlin-Rainaldi asserts the trial court erred when it applied the parol evidence rule to bar Jeepers' subsequent conduct when determining that the August 2001 agreement released Jeepers of its obligations under Note 1. r P29] [HN8] '"The parol evidence rule is not a rule of evidence but of substantive law.... It prohibits the consideration of evidence as to anything which happened prior to or simultaneously with the making of a contract which would vary the terms of the agreement.'" Thompson v. First Citizens Bank & Trust Co. (2002), 151 N.C.App. 704, 708- 709, 567 S.E.2d 184, quoting Harrell v. First Union Natl. Bank (1985), 76 N.C.App. 666, 667, 334 S.E.2d 109, 110, ("15] affirmed (1986), 316 N.C. 191, 340 S.E.2d 111. Accord Ed Schory & Sons, Inc. v. Society Natl. Bank (1996), 75 Ohio St. 3d 433, 440, 1996 Ohio 194, 662 N.E.2d 1074; Natl. City Bank, Akron v. Donaldson (1994), 95 Ohio App.3d 241, 244-245, 642 N.E.2d 58. "'Generally, the parol evidence rule prohibits the admission of evidence to contradict or add to the terms of a clear and unambiguous contract."' Thompson, supra, at 709, quoting Hansen v. DHL Laboratories (1994), 316 S.C. 505, 508, 450 S.E.2d 624, affirmed (1995), 319 S.C. 79, 459 S.E.2d 850. Accord Citicasters Co. v. Bricker & Eckler, L.L.P., 149 Ohio App.3d 705, 2002 Ohio 5814, at P7, 778 N.E.2d 663. For internal use only SDNY_GM_00054730 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17554 EFTA_00 165300 EFTA01295523

Page 35 2004 Ohio 6250, a; 2004 Ohio App. LEXIS 5682, ** [P30] Based upon our review, we find that the trial court did not expressly apply the parol evidence rule when it construed the August 2001 agreement. Therefore, we find Hanlin-Rainaldi's contention that the trial court improperly applied the parol evidence rule is misplaced. r P31] However, to the extent that Hanlin-Rainaldi asserts that the trial court misconstrued or misapplied, or both, the agreement, as between Hanlin-Rainaldi and Jeepers, we review de novo the trial court's [**16] determination. r P32] [HN9] "Under North Carolina law, 'when the language of the contract is clear and unambiguous, construction of the agreement is a matter of law for the court[,] and the court cannot look beyond the terms of the contract to determine the intentions of the parties.'" Financial Services of Raleigh, Inc. v. Barefoot (2004), 163 N.C.App. 387, 594 S.E.2d 37, 42, quoting Piedmont Bank & Trust Co. v. Stevenson (1986), 79 N.C.App. 236, 240, 339 S.E.2d 49, (internal citations omitted), affirmed per curiam, 317 N.C. 330, 344 S.E.2d 788; see, also, Helms v. Schultze (2003), 161 N.C.App. 404, 409, 588 S.E.2d 524. Therefore, " 'it must be presumed the parties intended what the language used clearly expresses, and the contract must be construed to mean what on its face it purports to mean.' " Barefoot, at 43, quoting Hartford Acc. & Indem. Co. v. Hood (1946), 226 N.C. 706, 710, 40 S.E.2d 198 (internal citations omitted). [P33] According to section 5a. of the August 2001 agreement: Harlin, and its parent, subsidiary. and affiliate corporations, and their respective shareholders. [—in partners. directors, officers. employees. insurers. representatives. and agents. and their respective heirs. successors, and assigns, hereby release and discharge Jeepers and Concord Mills, and each of their parent, subsidiary, and affiliate corporations, and their respective shareholders. partners, directors, officers, employees. insurers, representatives. subcontractors. suppliers. and agents, and their respective heirs, successors, and assigns, and from any and all obligations. liabilities. damages. claims. costs. expenses. and attorneys' fees (whether known or unknown) arising out of or relating in any manner to the upfit of the Jeepers' facilities in the Concord Mills Mall and in Southfield. Michigan. [T34] Furthermore, pursuant to section 9c. of the agreement: "This Agreement represents the entire agreement between the Parties with respect to the settlement of the dispute between them, and it supersedes all prior discussions, representations, and/or negotiations. This Agreement shall not be amended except in a writing signed by both of the Parties." [P35] Thus, applying the plain language of the agreement, we must determine whether Jeepers' obligation under Note ["18] 1 is an obligation, liability, claim, or cost that arises out of or relates in any manner to the upfit of Jeepers' facility in the Concord Mills Mall. r P36] Jeepers' obligation under Note 1 arose pursuant to a May 2000 agreement. Under this agreement, Hanlin-Rainaldi and Jeepers expressly desired to settle any and all claims against each other that resulted from the construction project in Concord, North Carolina. Pursuant to this agreement, Jeepers executed Note 1. [1:137] Accordingly, we conclude that Jeepers' obligation under Note 1 relates to the upfit of Jeepers' facility in the Concord Mills Mall, and it is an obligation that arises out of or relates to the upfit of the construction project in the Concord Mills Mall. [*P38] Because Jeepers' obligation under Note 1 arises out of or relates to the upfit of the construction project in the Concord Mills Mall, we further conclude, as a matter of law, that For internal use only SDNY_GM_00054731 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-00 17555 EFTA_00 165301 EFTA01295524

Page 36 2004 Ohio 6250, a; 2004 Ohio App. LEXIS 5682, ** section 5a. of the August 2001 agreement applies and releases Jeepers from its obligation under Note 1. See, generally, Barefoot, supra, at 42, citing Chemimetals Processing, Inc. v. Schrimsher (2000), 140 N.C.App. 135, 138, 535 S.E.2d 594 [""19] (applying principles governing interpretation of contracts when construing a release); Adder v. Holman & Moody, Inc. (1975), 288 N.C. 484, 492, 219 S.E.2d 190. rP391 Nevertheless, Hanlin-Rainaldi asserts that it was not the parties' intention that Jeepers' obligation under Note 1 would be discharged by the August 2001 agreement. (P40] [HN10] Under North Carolina law, "where the provisions of a contract are plainly set out, the court is not free to disregard them and a party may not contend for a different interpretation on the ground that it does not truly express the intent of the parties." Dixon, Odom & Co. v. Sledge (1982), 59 N.C.App. 280, 284, 296 S.E.2d 512, citing Taylor v. Gibbs (1966), 268 N.C. 363, 150 S.E.2d 506. (P411 Here, section 5a. of the August 2001 agreement plainly and unambiguously discharges Jeepers' obligation under Note 1. Finding that this provision of the contract is plainly set out, we are not free to disregard it on the grounds that it does not truly express the parties' intent. (P42] Accordingly, Hanlin-Rainaldi's argument that it was not the parties' intention that Jeepers' obligation ("20] under Note 1 would be discharged by the August 2001 agreement is unpersuasive. (P43] Therefore, having concluded that Hanlin-Rainaldi's contention that the trial court erred when it applied the parol evidence rule to bar Jeepers' subsequent conduct is misplaced and having concluded that section 5a. of the August 2001 agreement plainly and unambiguously applies to discharge Jeepers' obligation under Note 1, we therefore overrule Hanlin-Rainaldi's sole assignment of error. (P44] Accordingly, having overruled Hanlin-Rainaldi's sole assignment of error, and having found that Hanlin-Rainaldi's alternative assignment of error in its reply brief was improperly raised, we therefore affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. KLATT and WRIGHT, JJ., concur. WRIGHT, J., retired of the Supreme Court of Ohio, assigned to active duty under authority of Section 6(C), Article IV. Ohio Constitution. *** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY*" SUPREME COURT CIVIL SUITS FOR NEW YORK COUNTY, NEW YORK CASE-NAME: D.B. ZWIRN & CO., L.P. , DBZ GP, LLC, ZWIRN HOLDINGS, LLC AND DANIEL ZWIRN v. For internal use only SDNY_GM_00054732 CONFIDENTIAL - PURSUANT TO FED. R.cf;;?N(F IDENTIAL DB-SONY-00 17556 EFTA_00 165302 EFTA01295525

Page 37 D.B. ZWIRN & CO., L.P. v. FINANCIAL TRUST COMPANY, INC. FINANCIAL TRUST COMPANY, INC. AND JEEPERS, INC. STATUS: DISPOSED ON 07/23/2010, OTHER FINAL DISP. (PRE-NOTE) ACTION: E-FILED OTHER COMMERCIAL REQUEST FOR JUDICIAL INTERVENTION: 07/02/2010 INDEX-NUMBER: 6505822010 JUDGE: LOWE, RICHARD B. III PLAINTIFF ATTORNEY: LANKLER SIFFERT & WOHL LLP 500 FIFTH AVENUE - 33RD FLR. NEW YORK, NEW YORK 10110 1-212 921-8399 For internal use only SDNY_GM_00054733 CONFIDENTIAL - PURSUANT TO FED. R.crtAl(E IDENTIAL DB-SDNY-0017557 EFTA_00 165303 EFTA01295526

Page 38 GACHITORENA, BRIAN, INFANT v. JEEPERS & JEEPERS, INC. *** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY*** SUPREME COURT CIVIL SUITS FOR ROCKLAND COUNTY, NEW YORK CASE-NAME: GACHITORENA, BRIAN, INFANT GUARDIAN EILEEN O'ROURKE v. JEEPERS & JEEPERS, INC. STATUS: DISPOSED ON 04/25/2005; OTHER SETTLEMENT PRE-NOTE ACTION: OTHER TORTS NEGLIGENCE REQUEST FOR JUDICIAL INTERVENTION: 11/07/2003 INDEX-NUMBER: 0075722002 JUDGE: GEORGE M. BERGERMAN PLAINTIFF ATTORNEY: DONALDSON, CHILLIEST ETAL 103 E. 125TH ST. STE 1102 W YORK 10035 DEFENDANT ATTORNEY: GORDON & SILBER 355 LEXINGTON AVE. 7TH FL. NEW YORK. N.Y. 10017 For internal use only SDNY_GM_00054734 CONFIDENTIAL - PURSUANT TO FED. R.cf;;)INE IDENTIAL DB-SDNY-0017558 EFTA_00 165304 EFTA01295527

Page 39 ROMAN, RUBEN N., BY HIS v. JEEPERS, INC., PYRAMID *** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY*** SUPREME COURT CIVIL SUITS FOR ROCKLAND COUNTY, NEW YORK CASE-NAME: ROMAN, RUBEN N., BY HIS FATHER AND LEGAL GUARDIAN, RUBEN ROMAN. v. JEEPERS, INC., PYRAMID MANAGEMENT GROUP, INC., AND EKLECCO, INC. STATUS: DISPOSED ON 06/01/2006; SETTLED BEFORE TRIAL ACTION: OTHER TORTS NEGLIGENCE REQUEST FOR JUDICIAL INTERVENTION: 08/20/2003 NOTE OF ISSUE FILED: 05/03/2004 INDEX-NUMBER: 0086462002 JURY REQUESTED BY: PLAINTIFF JUDGE: ALFRED J. WEINER PLAINTIFF ATTORNEY: JAN H. RILEY 501 WEST145 STREET NEW YORK, NY 10031 DEFENDANT ATTORNEY: MARC D. ORLOFF,P.C., 55 MAIN STREET,BOX 386 GOSHEN N.Y. 10924 For internal use only SDNY_GM_00054735 CONFIDENTIAL - PURSUANT TO FED. R.cf;;?FilE IDENTIAL DB-SDNY-0017559 EFTA_00 165305 EFTA01295528

Page 40 CIVIL SUITS FROM MARYLANDMARYLAND DISTRICT COURT • * • THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY" • CIVIL SUITS FROM MARYLAND MARYLAND DISTRICT COURT Defendant: JEEPERS, INC. Plaintiff: CINTAS. CORPORATION Plaintiff Address: CINTAS, CORPORATION 3951 DARTMOUTH COURT FREDERICK, MD 21703 Plaintiff Attorney: LIPPMAN, JEFFREY M WEINSTOCK, FRIEDMAN,ETAL 4 RESERVOIR CIRC,2ND FLR BALTIMORE, MD 21208 Number: 0702-001450-2007 Vendor Number: DS-00001450-2007 Date: 1/17/2007 Filing Type: CIVIL SUIT Case Type: CONTRACT Amount: $ 6,832 Status: OPEN County Filed: MONTGOMERY Place Filed: MARYLAND DISTRICT COURT Description: CIVIL SUITS ADDITIONAL SUBJUDGMENTS EXIST; SEARCH THE VENDOR NUMBER MICHAEL CARDIERI, Claimant v. JEEPERS, INC., Employer; For internal use only SDNY_GM_00054736 CONFIDENTIAL - PURSUANT TO FED. R.cr1M(E IDENTIAL DB-SDNY-0017560 EFTA_00 165306 EFTA01295529

Page 41 2006 VA Wrk. Comp. LEXIS 1044, * HANOVER INSURANCE COMPANY, Insurer VWC FILE NO. 218-93-35 Virginia's Workers' Compensation Commission 2006 VA Wrk. Comp. LEXIS 1044 November 16, 2006 CORE TERMS: claimant, doctor, pain, cervical, symptom, pre-injury, sedentary, specialist, ongoing, lumbar, syndrome, treating, medical evidence, recommended, subjective, evaluated, part-time, diagnosed, temporary total disability, industrial accident, physical therapy, return to work, exaggeration, work-related, dysfunction, diagnostic, capability, depression, myofascial, traumatic COUNSEL: Keith L. Kimball, Esquire, Colgan, Kimball and Carnes, 4456 Corporation Lane, Suite 330, Virginia Beach, VA 23462, for the Claimant. Jimese P. Sherrill, Esquire, Jordan, Coyne and Savits, L.L.P., 10509 Judicial Drive, Suite 200, Fairfax, VA 22030, for the Defendants. JUDGES: COMMISSIONER TARR, COMMISSIONER DIAMOND, AND COMMISSIONER DUDLEY OPINIONBY: DUDLEY OPINION: r The employer has requested Review of the Deputy Commissioners April 19, 2006, Opinion resuming temporary total disability benefits. n1 It assigns error to the finding that it failed to prove that the claimant was capable of returning to his pre-injury employment. Finding no error, we affirm. n1 The claimant did not appeal the denial of his claim requesting payment for an MRI scan; therefore, we will omit facts pertaining to this issue. ----------------End Footnote-------- --------- -- On May 13, 2004, the claimant sustained a compensable injury by accident to his head, neck, shoulder, back, and hip. The employer paid ongoing temporary total disability benefits and medical benefits. On March 17, 2005, the employer filed an Application for Hearing seeking termination of the temporary total disability award. It alleged that Dr. David G. Goss, orthopedic surgeon, released the claimant to pre-injury employment effective March 15, 2005. For internal use only SDNY_GM_00054737 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0017561 EFTA_00165307 EFTA01295530

Page 42 2006 VA Wrk. Comp. LEXIS 1044, At the Hearing, the claimant testified that on the day of his accident, he fell from a ladder and struck his head, neck, and left side of his body on the floor. He stated that r2j his pre-injury duties involved maintaining equipment, motors, plumbing, and electrical components at an indoor amusement park, which required him to lift items weighing 75 to 100 pounds. The claimant denied that he had returned to work since the accident. He did not recall being released to perform light duty in the fall of 2004. The claimant acknowledged that he attempted for a half day to perform a job offered by the employer, but said that he could not perform the job due to his "agony." He remembered that Dr. Goss informed him in March 2005 that he could return to full duty. The claimant explained that he did not return to work for the employer, because he felt that he could not perform his pre-injury job. Lucille Cardieri, his wife, testified that since the accident, he could not perform his typical, heavy household chores. The claimant testified that he looked for employment that did not involve much physical labor, even before his release, and that he found a part-time job working as a manager in May 2005. He ceased this job, because his condition worsened, and he could not lift, bend, or fulfill other required physical activities. The claimant stated that he tried to locate r3] other appropriate work thereafter, and that he registered with the Virginia Employment Commission in May 2005. He said that he looked for any employment within his limitations. The pertinent medical record reflects that Dr. Kirsten A. Santianni, family practitioner, began treating the claimant shortly after his injury by accident. Dr. Santianni assessed that as a result of the fall, he suffered: (1) cervical, trapezius, thoracic, and lumbar muscle spasms and pain; (2) left leg weakness and paresthesias; (3) tinnitus; and (4) left arm paresthesias. Dr. Santianni referred the claimant to various specialists. Dr. James D. Dillon, neurosurgeon, consulted with the claimant in July 2004 and concluded that he suffered a closed head injury with a cerebral concussion, possibly a skull injury, and a traumatic cervical strain. Dr. Dillon did not recommend surgery. Dr. Donald E. LaMarche, Jr., neurologist, monitored the claimant's ongoing complaints and diagnosed a cervical strain. Dr. LaMarche advised against surgery. A functional capacity evaluation (FCE) performed in August 2004 found that the claimant functioned at a sedentary/light physical demand level. The evaluator concluded that he did r'4] not demonstrate the capability to perform his pre-injury employment, "relative to high degree of self-limiting performance based on subjective pain patterns." Dr. Goss began treating the claimant in November 2004, and diagnosed multi-level cervical disc protrusions and congenital lumbar stenosis. The doctor prescribed physical therapy, and periodically removed him from work or returned him with modifications. In December 2004, Dr. LaMarche agreed with Dr. Goss' return of the claimant to sedentary, part-time work. The claimant reported to Dr. LaMarche on January 11, 2005, that his return to work was unsuccessful and caused much pain. As a result, the doctor excused him from employment. On January 12, 2005, Dr. Santianni issued a prescription note stating that the claimant should not perform any work. She wrote that employment aggravated his condition and increased his pain. For internal use only SDNY_GM_00054738 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SDNY-00 17562 EFTA_00 165308 EFTA01295531

Page 43 2006 VA Wrk. Comp. LEXIS 1044, * On February 10, 2005, Dr. Goss prescribed four additional weeks of physical therapy, and stated that, "I have placed the claimant back to full duty as of March 14, 2005," after the completion of therapy. The doctor indicated that: "The claimant will return to full duty and we will see how things go." Dr. LaMarche r51 evaluated the claimant on February 15, 2005, and noted that: "I wrote him a note to release him to work for 3/14/2005, as Dr. Goss did. The claimant says he will try it for a day, but he knows that it will not work for him." Dr. LaMarche commented that he found no clear etiology for the claimant's discomfort, but that he had no reason to doubt his sincerity. The claimant saw Dr. Goss on March 15, 2005, and reported a multitude of ongoing orthopedic complaints. The doctor reported that he was released to full duty, but that the employer no longer had a job for him. Dr. Goss proposed another FCE, and stated that: "I will still keep the claimant at full duty but the FCE will help guide future decisions." The claimant underwent another FCE on April 14, 2005, and Dr. Goss reviewed the results on April 19, 2005. The doctor noted that: "As expected the claimant's FCE shows a lack of ability to perform full duty." The FCE reported that he showed significant symptom exaggeration and not a full effort. Dr. Goss agreed to keep the claimant at "sedentary duty per his FCE," and predicted that he would progress his work-related capabilities after four more weeks of physical therapy. On May 17, ['6] 2005, Dr. Goss concluded that he had nothing further to offer the claimant and referred him to a pain management specialist. The doctor recommended continued sedentary duty, and considered this restriction to be permanent until he saw a pain management physician and perhaps had another FCE. Dr. Goss commented that he 'Would not mind a full duty release at this point," based on the claimant's lack of full effort at the FCE. Regardless, the doctor left the decision to the pain management specialist. Dr. Goss issued a disability slip indicating that the sedentary-duty restrictions were temporary until the claimant reached maximum medical improvement on June 1, 2005. Pursuant to Dr. Goss' referral, Dr. Donald Holzer, neurologist, evaluated the claimant on June 18, 2005. Dr. Holzer concluded that he suffered cervical myofascial pain dysfunction syndrome with underlying disc herniations, cervical and lumbar radiculopathy, lumbar myofascial pain dysfunction syndrome with underlying lumbar spondylosis, post- traumatic syndrome secondary to his head trauma, and depression over his chronic pain and inability to function. The doctor stated that these problems were directly and causally related rij to the claimant's industrial accident. Dr. Holzer proposed a TENS unit, consultation with a pain psychologist, cervical epidural steroid injections, and medications. The doctor recommended that: "The claimant cease working entirely at the present time, as he clearly is having extreme difficulties functioning, even in a part-time capacity and this will allow us an opportunity to assess fully the therapies proposed above." On July 5, 2005, the claimant returned to Dr. Goss, who repeated that he had no treatment to offer, and that he had deferred treatment and work restrictions to the physiatrist. The doctor expressed doubt that the symptoms were as severe as he conveyed during his clinic visits. Dr. Holzer monitored the claimant's ongoing symptoms throughout the summer of 2005. For internal use only SDNY_GM_00054739 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17563 EFTA_00 165309 EFTA01295532

Page 44 2006 VA Wrk. Comp. LEXIS 1044, On August 23, 2005, the claimant underwent an independent medical examination by Dr. Mark A. Ross, physiatrist. He informed Dr. Ross about the accident, his treatment, and that he had not improved since the injury. The claimant complained of suffering constant pain, ranging from a level six to ten, humming in his head, dizziness, imbalance, and difficulty walking, standing, lifting, bending, and concentrating. ["8JHe advised Dr. Ross that he could not work, because he frequently had to lie down. The doctor interviewed the claimant, reviewed his diagnostic studies, and read his medical records. Dr. Ross concluded that the claimant had no diagnoses resulting from the work-related accident, and that: "There are continued pain complaints but there is no supportable medical basis for the diagnosis of a physical injury." Dr. Ross dismissed the claimant's subjective complaints as unreliable and not supported by objective findings. He similarly opined that much medical treatment had been excessive and unnecessary as responsive to the unsubstantiated subjective complaints. Dr. Ross stated that ongoing treatment was not required, since the claimant's complaints and physical examination findings were not credible. The doctor concluded that he could return to full, unrestricted duty and that no medical evidence supported restrictions. Dr. Ross suggested that the claimant likely had a psychological/behavioral component to explain his ongoing alleged symptoms. The doctor recommended evaluation for a mild traumatic brain injury, since this might be "the only alternate explanation" for his "relentless pursuit [' 9] of physical remedy" for his "nonexistent physical problems." Dr. Ross immediately issued a revision to clarify that his report of August 23, 2005, contained a typographical error, and should convey that he "did not see" the claimant's subjective complaints. By letter dated October 14, 2005, Dr. Holzer restated the claimant's history and his original treatment of him. He noted that he had reviewed Dr. Ross' evaluation and some reports from other treating physicians, such as Dr. Goss. Dr. Holzer maintained his opinion that as a result of the industrial accident, the claimant suffered cervical and lumbar myofascial pain dysfunction syndrome, post-traumatic syndrome secondary to his head trauma, and depression. The doctor assessed, with a reasonable degree of medical certainty, that the work-related injuries were causally related to his current problems and total disability. Dr. Holzer emphasized that the claimant had demonstrated objective findings on examination and diagnostic studies. The doctor acknowledged that he had preexisting degenerative disease in his cervical area. However, Dr. Holzer stressed that before the accident, the claimant was asymptomatic and capable of working. No] The doctor maintained, with a reasonable degree of medical certainty, that: "The claimant remains disabled totally from his work, as a direct result of the injury in question and due to the above diagnoses, which are clearly related to his injury." Dr. Scott W. Sautter, neurospsychologist, evaluated the claimant on December 7, 2005, to assess whether he suffered a mild traumatic brain injury or psychogenic component to his report of symptoms. Dr. Sautter concluded that the test data revealed poor testing, and that "his performance of slightly better than chance is atypical," which suggested poor effort or exaggeration of symptoms. The doctor opined that the evaluation was invalid, and not a representation of the claimant's true abilities, and that his personality assessment suggested somatization. Dr. Sautter diagnosed: (1) a probable cognitive disorder, most likely secondary to his mood disorder and complaints of chronic pain; (2) major depression; (3) tendency to somatosize symptoms; and (4) complaints of For internal use only SDNY_GM_00054740 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17564 EFTA_00165310 EFTA01295533

Page 45 2006 VA Wrk. Comp. LEXIS 1044, * chronic pain. Dr. Sautter recommended that the claimant "consider evaluation for return to work" and begin working part-time. On January 5, 2005, Dr. Ross wrote an addendum to his [11] initial report, upon reviewing Dr. Sautter's conclusions of December 7, 2005. He retained his opinion that no medical basis existed to prevent the claimant from resuming gainful employment. Dr. Ross issued a Second Addendum on January 11, 2006, and addressed the recent reports from Dr. Sautter and Dr. Holzer. He maintained his previous opinions. The Deputy Commissioner was persuaded by the opinions of Dr. Goss and Dr. Holzer, and found that the employer failed to prove that the claimant was released to his pre-injury employment. The Deputy Commissioner emphasized that Dr. Goss' release was invalid, and at most, "fleeting," and he afforded little weight to Dr. Ross' conclusion that the claimant was completely recovered from his injuries. On Review, we find no reversible error in this weighing of the medical evidence. "Any medical opinion offered into evidence 'is not necessarily conclusive, but is subject to the commission's consideration and weighing."' Farmington Country Club v. Marshall, 47 Va. App. 15, 26, 622 S.E.2d 233, 239 (2005), quoting Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). p12] "The probative weight to be accorded medical evidence is for the Commission to decide; and if it is in conflict with other medical evidence, the Commission is free to adopt that view 'which is most consistent with reason and justice."' Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d 267, 269 (2000), quoting CDS Const. Services v. Petrock, 218 Va. 1064, 1070, 243 S.E.2d 236, 240 (1978). The extensive medical record reflects that numerous specialists have evaluated and treated the claimant. In the fall of 2004 and into the spring of 2005, Dr. Goss rendered opinions about his ability to work. The doctor periodically limited the claimant's work capabilities and removed him completely from all work. In January 2005, Dr. Goss began predicting that he would return to regular duty in March 2005. After evaluation on March 15, 2005, he released the claimant to full duty and advised that he awaited the result of the FCE to "guide future decisions." Within one month, he participated in the FCE, and the evaluator concluded that he had the capacity to perform sedentary work. Dr. Goss acknowledged ['3] that the report indicated the claimant's significant symptom exaggeration and failure to give full effort. Regardless, the doctor restricted him to sedentary duty. Dr. Goss maintained this restriction until the claimant began treating with a pain management specialist. At this point, he deferred work restrictions to the decision of the pain management specialist, Dr. Holzer. Dr. Holzer completely removed the claimant from employment, diagnosed multiple complaints, and causally related his disability and symptoms to the industrial accident. He emphasized that the examinations and diagnostic studies evinced objective problems. Given this evidence, the Deputy Commissioner reasonably afforded more weight to the opinions of the treating physicians over the contrary conclusions of Dr. Ross. We agree with the employer's arguments that some physicians have released the claimant to work at least some form of employment, and that the FCE reported his sub-maximal effort. However, he presented evidence of other physicians who treated and monitored his For internal use only SDNY_GM_00054741 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17565 EFTA_00 653 I EFTA01295534

Page 46 2006 VA Wrk. Comp. LEXIS 1044, condition, reviewed his records, and excused him from work. Further, any release from Dr. Goss or other treating physician has been to sedentary [94] duty, as reflected by the FCE, not his pre-injury employment. For the reasons stated, the Opinion below is AFFIRMED. The attorney's fee to be deducted from accrued compensation and paid to Keith L. Kimball, Esquire, is hereby increased to a total of $3,200. This matter is hereby removed from the Review docket. APPEAL This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days of receipt. Legal Topics: For related research and practice materials, see the following legal topics: Labor & Employment LawDisability & Unemployment InsuranceDisability BenefitsGeneral OverviewWorkers' Compensation & SSDIAdministrative ProceedingsEvidenceMedical EvidenceWorkers' Compensation & SSDICompensabilitylnjuriesPreexisting Conditions For internal use only SDNY_GM_00054742 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17566 EFTA 00165312 EFTA01295535