Civil Appeal from Common Pleas Court, Case No. 12 CVG 60.
For Plaintiff-Appellee: Attorney Costa Mastros
For Defendants-Appellants: Attorney Don Yannerella
Hon. Mary DeGenaro Hon. Joseph J. Vukovich Hon. Cheryl L. Waite
(¶1} Naji T. Abboud and Hilltop Drive, LLC, dba Buckeye Fuel and Food, Defendants/Appellants, appeal the decision of the Jefferson County Court of Common Pleas, granting summary judgment to Riley Petroleum Products, LLC. On appeal, Abboud argues that the trial court abused its discretion in granting summary judgment to Riley and in denying his motion to set aside summary judgment.
(¶2} Abboud's first assignment of error is dispositive of the appeal and is meritorious. The trial court committed error in granting Riley summary judgment as it did not meet the requirements for establishing a prima facie case for money owed on an account. Accordingly, the judgment of the trial court is reversed and this cause is remanded for further proceedings.
(¶3} On or about January 5, 2011, Abboud signed a document entitled 'Riley Petroleum Products LLC, Commercial / Business Credit Application and Agreement' The two page agreement included information about Hilltop, Abboud, the terms and conditions of sale between Riley and Hilltop, and ramifications for default. It was signed on behalf of Hilltop and personally guaranteed by Abboud.
(¶4} On February 8, 2012, Riley filed a complaint for breach of contract in the Jefferson County Court of Common Pleas, which he amended on February 10, 2012. Hilltop and Abboud filed an answer on March 30, 2012, and asserted various defenses, including accord and satisfaction.
(¶5} On May 4, 2012, Riley filed a motion for summary judgment supported by the affidavit of John Riley. In the affidavit John referenced an accounts receivable ledger which was never attached. Abboud was served by regular U.S. Mail on May 4, 2012, at two of the addresses that he provided on the answer to the complaint. A hearing was set on the motion for May 21, 2012.
(¶6} At the hearing on Riley's motion neither Abboud, nor any other representative for Hilltop appeared. Based upon the facts alleged in the affidavit and the attached and authenticated documents, the trial court granted summary judgment.
(¶7} In addition to this appeal, Abboud filed a motion to set aside the summary judgment. According to the transcript of proceedings filed with this court, a hearing was held on Abboud's motion to set aside summary judgment on June 15, 2012, at which Abboud contended that he was not properly served. A review of the file and docket indicates there was no judgment entry filed from this hearing.
(¶8} Abboud asserts two assignments of error:
(¶9} "The trial court abused its discretion in granting Plaintiff/Appellee's Summary Judgment on May ...