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Johncol, Inc. v. Cardinal Concession Services, L.L.C.

Court of Appeals of Ohio, Tenth District

December 14, 2017

Johncol, Inc., d.b.a. Papa John's Pizza, Plaintiff-Appellee,
v.
Cardinal Concession Services, L.L.C., d.b.a. Cardinal Concessions, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 16CV-996)

         On brief:

          Vorys, Sater, Seymour and Pease LLP, Jacklyn J. Ford, and Damien C. Kitte, for appellee.

         Argued:

          Damien C. Kitte.

         On brief:

          Soroka and Associates, LLC, Roger Soroka, Joshua Bedtelyon, and Aaron Jones, for appellee.

         Argued:

          Aaron Jones.

          DECISION

          DORRIAN, J.

         {¶ 1} Defendant-appellant, Cardinal Concession Services, L.L.C., doing business as Cardinal Concessions, appeals the January 24 and April 10, 2017 judgments of the Franklin County Court of Common Pleas which granted summary judgment and prejudgment interest in favor of plaintiff-appellee, Johncol, Inc., d.b.a. Papa John's Pizza. For the reasons that follow, we affirm in part and reverse in part.

         I. Facts and Procedural History

         {¶ 2} Appellant is a limited liability company operated by Scott Nail. Appellant operates concession stands. Appellee is a Kentucky corporation which operates Papa John's Pizza franchises. These franchises are operated by Charles Burris. Appellee delivered pizzas to swimming pool concession stands run by appellant. Appellant then sold pizza to its customers at an increased price. For pizzas delivered in 2013, appellant paid appellee $10, 666.50 in June 2014. Appellee delivered pizzas to appellant in 2014 as well. The deliveries made from May 2014 to September 1, 2014 are the subject of this appeal.

         {¶ 3} After making numerous unsuccessful attempts to secure payment, on January 29, 2016, appellee filed a complaint against appellant alleging appellant accepted but did not pay for pizzas delivered between May to September 1, 2014. The complaint included one count for an action on account and one count for unjust enrichment. Appellant filed an answer admitting pizzas were delivered but denying the amount appellee alleged was due, $25, 079.25.

         {¶ 4} On November 4, 2016, appellee filed a motion for summary judgment. Appellee alleged that the conduct of appellant and appellee established a contractual relationship between the parties, appellee had performed its obligations pursuant thereto by delivering pizza, and appellant had breached the contract for failing to pay for pizzas delivered between May and September 1, 2014. In the alternative, appellee alleged that in the absence of a contractual relationship, appellant was liable to appellee for payment of the pizzas pursuant to a theory of unjust enrichment. Appellee alleged it would be unjust for appellant to retain the products delivered without payment.

         {¶ 5} Appellant filed a memorandum contra on November 18, 2016. Appellant conceded that appellee delivered pizzas and other food products during the alleged time period to appellant on account, but disputed there was a contract between the parties. Appellant stated that it "questions the accuracy of the accounts, " "never explicitly admitted to owing $25, 079.25 to [appellee], [and] [d]ue to the discrepancies with the accounts, invoices and receipts * * * has not paid the alleged total of $25, 079.25." (Memo. Contra at 2.) Appellant argued the breach of contract claim failed because no contract existed and it was barred by the statute of frauds. Specifically, in this regard, appellant argued the statements of accounts and invoices provided by appellee did not contain a description of nor quantity of the products delivered. Appellant further argued the unjust enrichment claim failed because appellant was not aware of the benefit received. In this regard, appellant argued that appellee did not provide a proper account according to Brown v. Columbus Stamping & Mfg. Co., 9 Ohio App.2d 123 (10th Dist.1967). Appellant finally stated that it "has taken the time to review the collection of receipts provided through the discovery process, " that they "contain various names not recognizable to [appellant], illegible signatures with no printed name on some receipts, multiple signatures on some receipts, and what is most troubling, some receipts with absolutely no signatures or printed names. Thus, there are discrepancies of who signed the receipts and accepted the pizzas and/or food products when they were delivered from [appellee] to the area where [appellant] operates its concessions." (Memo. Contra at 8-9.) Appellant complains that appellee did not attach to its motion for summary judgment any of the receipts. However, appellant did not attach any of the allegedly deficient receipts to its memorandum contra.

         {¶ 6} On January 24, 2017, the trial court filed a decision granting the motion for summary judgment in favor of appellee. The trial court found the evidence submitted by appellee adequately proves an account due and owing for $25, 079.25. It further found appellant's response constituted "vague and unsupported statements" not sufficient to oppose summary judgment. (Decision at 3.) Finally, the court rejected appellant's statute of fraud's argument as this action did not involve a contract for the sale of goods for more than $500, but, rather, a series of smaller transactions between the parties, with no transaction totaling $500 or more. The court ordered appellee to submit a proposed judgment entry.

         {¶ 7} Appellee submitted a proposed judgment entry and appellant objected to the same arguing that appellee's proposed date to begin calculating prejudgment interest, September 1, 2014, is not supported by the evidence presented, nor the prior business dealings between the parties. Appellant argued the interest should apply from the date on which the debt was due to be paid, not the day the debt was initially incurred. In support of this argument, appellant pointed to: (1) the nature of an action on account, which essentially requires payment at a later date, (2) the invoices presented by appellee which were dated September 30, 2016 and stated "payable upon receipt, " (3) the past business dealings of the parties whereby appellant did not pay for pizzas received in 2013 until June 2014, and (4) receipts presented by appellee to appellant, some of which specified the payment was on account and some which stated the balance due at the time of delivery was $0. Appellant urged the court to consider the prior course of dealing between the parties and to make a determination "of when the Parties reasonably would have believed the debt to have become 'due and payable.' " (Objs. at 4.) Appellee filed a response arguing it was entitled to prejudgment interest, pursuant to R.C. 1343.03(A), and that it proposed September 1, 2014 as the accrual date to alleviate the need to calculate interest on hundreds of debts with start dates throughout summer 2014. Appellee also points out the statements of accounts list the due date as the date of delivery. Finally, appellee argued it is disingenuous for appellant to take advantage of its "courteous" gesture of receiving the payment for delivered 2013 pizzas one year later in June 2014 and that such gesture did not alter the date of payment for subsequent transactions. (Response at 3.)

         {¶ 8} On April 10, 2017, the trial court filed a judgment entry granting judgment in favor of appellee for $25, 079.25 and ordered appellant to pay appellee prejudgment interest "at the rate allowed by law calculated beginning on September 1, 2014, which represents the latest due date on the invoice ...


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