Court of Appeals of Ohio, Twelfth District, Clermont
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No.
Lindhorst & Dreidame, Barry Fagel and Matthew Curran, for
Prince and Miles Prince, for defendant-appellant.
and Uhle, Richard Uhle, Jr., for defendant-appellant.
1} Defendant-appellant, Red Chamber Co.
("RC"), appeals a decision of the Clermont County
Court of Common Pleas, granting summary judgment in favor of
plaintiff-appellee, Total Quality Logistics, LLC
2} In 2008, RC, a seafood distributor began using
TQL's services as a freight broker to transport RC's
products to its customers. In turn, as a broker, TQL
contracted with third-party trucking companies to transport
the products across the country. A credit agreement governed
this working relationship, and provided:
Applicant understands motor carriers under contract with
[TQL] are required to maintain cargo loss and damage
liability insurance in the amount of $100, 000.00 per
shipment. Please sign below acknowledging that [l]oads valued
in excess of $100, 000[.00] will not be tendered without
enough prior written notification to TQL to allow TQL and its
carriers the opportunity to arrange for increased insurance
limits. Failure to provide timely written notice will result
in your loads not being insured to the extent the value
exceeds $100, 000.00.
3} In April 2013, RC contracted with TQL to arrange
the transport of RC's goods from California to Florida.
In turn, TQL retained Wells Trucking to transport and deliver
RC's goods. During transport, an unknown third-party
stole the load of goods valued at $186, 450, which RC never
recovered. TQL brought this action against RC claiming it had
breached the credit agreement by failing to pay for 13 other
brokered shipments between April 2, 2013 and July 5, 2013,
and alleged damages of $53, 402, plus interest, collection
costs, and attorney fees. RC counterclaimed, asserting the
loss of the value of the stolen goods was a result of
TQL's breach of contract, negligence, and negligent
supervision and hiring. TQL filed a third-party complaint
against Wells Trucking alleging negligence and seeking
indemnification. Wells Trucking's insurance carrier
settled with RC for $100, 000. In so doing, RC agreed to
indemnify Wells Trucking for any claims by any other party
for damages resulting from the loss.
4} TQL moved for summary judgment on its breach of
contract claim and RC's counterclaims. In so doing, TQL
argued RC's counterclaims were barred by the doctrine of
circular indemnity, preempted by the Carmack Amendment, 49
U.S.C. 14706(a), to the ICC Termination Act of 1995, 49
U.S.C. 14501(b), and fail on their merits as a matter of law.
With respect to its breach of contract claim, TQL asserted
RC's counterclaim was an attempt to offset the damages
from RC's nonpayment of the 13 other brokered shipments;
therefore, TQL was entitled to judgment as a matter of law.
The trial court granted summary judgment in favor of TQL on
its claim and RC's counterclaims. The trial court found
the ICCTA preempted RC's state law counterclaims. The
trial court further found TQL met its burden of demonstrating
an absence of a genuine issue of material fact regarding its
claim, and that RC failed to rebut the evidence presented by
TQL; therefore, TQL was entitled to judgment as a matter of
law. This appeal followed.
5} Assignment of Error No. 1:
6} THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT FOR APPELLEE ON APPELLANT'S COUNTERCLAIM.
7} RC contends the trial court erred by sua sponte
granting summary judgment in favor of TQL on grounds not
offered in TQL's motion for summary judgment thereby
denying RC a meaningful opportunity to respond. Specifically,
RC asserts the trial court erred by relying on the ICCTA in
granting summary judgment on RC's counterclaims in favor
of TQL because, at no point during the pendency of the
matter, was that section of the statute presented as a basis
for summary judgment.
8} We review a trial court's ruling on a motion
for summary judgment de novo. Grizinski v. Am. Express
Fin. Advisors, Inc.,187 Ohio App.3d 393,
2010-Ohio-1945, ¶ 14 (12th Dist.). "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." Morris v. Dobbins Nursing Home,
12th Dist. Clermont No. CA2010-12-102, 2011-Ohio-3014, ¶
14. Summary judgment is proper if there are no genuine issues
of material fact to be litigated, the moving party is
entitled to judgment as a matter of law, and reasonable minds
can come to only one conclusion, and that conclusion is
adverse to the nonmoving party. Civ.R. 56(C); Williams v.
McFarland Properties, LLC,177 Ohio App.3d 490,
2008-Ohio-3594, ¶ 7 (12th Dist.). The moving party bears
the initial burden of demonstrating the absence of a ...