Costner Consulting Co. v. U.S. Bancorp
960 N.E.2d 1005
Ohio Ct. App.2011Background
- Costner (DISC) sues US Bancorp over an account and breach of an express/implied contract tied to a Toshiba/Organized Living finance lease for office equipment.
- Lease documents: a July 13, 2004 value lease, a December 22, 2004 lease supplement, and a February 4, 2005 supplement; Toshiba assigned the lease to US Bancorp; DISC alleged to provide maintenance and supplies.
- Vendor agreement between DISC and US Bancorp purportedly governs payment, with US Bancorp to pay DISC upon receipt from Organized Living, and is governed by Minnesota law; US Bancorp signature is blank.
- Costner alleges DISC performed maintenance and meter readings for Organized Living; DISC billed US Bancorp for overages and maintenance; Organized Living defaulted and Toshiba/US Bancorp billed Organized Living.
- Trial court granted summary judgment to US Bancorp; Costner appeals, arguing genuine issues exist regarding mutual assent to the vendor agreement and alternative verbal arrangements.
- Ohio appellate court reverses, finding disputed questions of material fact about mutual assent, theVendor agreement’s enforceability, and whether performance/diverse dealings show the terms were accepted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the vendor agreement enforceable as to mutual assent? | Costner argues lack of US Bancorp signature creates a fact issue on assent. | Bancorp contends assent through performance and that signature is unnecessary. | Issues of mutual assent remain; summary judgment improper. |
| Did the vendor agreement govern the parties' rights and obligations? | Vendor terms control, evidenced by DISC's and Bancorp's performance. | Vendor agreement governs; signature not required; performance under terms shows intent. | Questions of fact remain about whether the vendor agreement governs. |
| Was there a valid oral/verbal agreement between Bancorp and DISC independent of the vendor agreement? | There was an overarching oral agreement for service and payment regardless of Organized Living’s payment. | No clear verbal agreement; evidence insufficient to establish terms. | Evidence shows genuine issues of material fact regarding any verbal agreement. |
| Did the trial court improperly weigh evidence on summary judgment? | The trial court impermissibly weighed the evidence to find mutual assent. | Evidence supports contract terms and performance alignment. | Court properly reversed to resolve factual disputes at trial. |
Key Cases Cited
- Kostelnik v. Helper, 96 Ohio St.3d 1 (Ohio 2002) (elements of a contract; mutual assent required)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (Ohio 1992) (summary-judgment standards; deference to nonmoving party)
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (Ohio 1978) (summary-judgment standard; cautious use)
- Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579 (Ohio 1994) (contract formation; genuine issue of material fact on mutual assent)
- Gutbrod v. Schuler, 2010-Ohio-3731 (Ohio App.3d 2010) (reversals on summary judgment when factual disputes exist)