Johncol, Inc., d.b.a. Papa John's Pizza, Plaintiff-Appellee,
Cardinal Concession Services, L.L.C., d.b.a. Cardinal Concessions, Defendant-Appellant.
from the Franklin County Court of Common Pleas (C.P.C. No.
Sater, Seymour and Pease LLP, Jacklyn J. Ford, and Damien C.
Kitte, for appellee.
and Associates, LLC, Roger Soroka, Joshua Bedtelyon, and
Aaron Jones, for appellee.
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.
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
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 ...