Kwikcolor Sand v. Fairmount Minerals Ltd.
2011 Ohio 6646
Ohio Ct. App.2011Background
- Contract between Kwikcolor Sand and Fairmount Minerals as a requirement MPDA contract for colored quartz; term renewed annually unless 90-day notice to terminate.
- 2005 oral price renegotiation occurred based on a June 27, 2005 price list, with no signed writing; pricing changes accompanied by a discount on raw sand.
- From 2005 to Oct 2006, 73 invoices reflected 2005 pricing; these were paid and accepted; in Sept 2009 KCS reissued these as 73 reissued invoices under Schedule A pricing.
- Termination notification issued Sept 1, 2006; during termination, appellees placed orders at 2005 pricing and KCS issued invoices at Schedule A pricing; 14 divergent invoices resulted.
- Seven ‘additional invoices’ sought storage/transactional fees and quantities not requested; appellees disputed these charges.
- Trial court granted summary judgement to appellees; on appeal, court addresses whether oral modification waivers and pricing modifications foreclose KCS’s claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the MPDA pricing was validly modified | KCS argues no waiver of no-oral-modification; Schedule A remains governing. | Appellees contend the parties orally modified pricing in 2005 and acted under it. | Oral modification enforced; no-oral-modification clause waived by course of performance. |
| Whether reissued/divergent invoices breached the MPDA | KCS asserts breach by charging Schedule A prices. | Appellees paid under modified pricing; no breach for reissued/divergent invoices. | No breach; modified pricing governed payments. |
| Whether unjust enrichment claim survives | Unjust enrichment independent of contract. | Existence of enforceable MPDA precludes unjust enrichment. | Unjust enrichment claim barred by valid contract. |
| Whether storage/other fees in additional invoices were authorized | KCS entitled to fees billed in additional invoices. | No contract or authorization for storage/fees. | No contract basis for additional fees; no breach for those items. |
Key Cases Cited
- Povroznik v. Mowinski Builders, Inc., 2010-Ohio-1669 (Ohio App. 2010) (contract/unenforceability with modified pricing)
- Fields Excavating, Inc. v. Intrak, Inc., 66 Ohio App.3d 163 (Ohio App. 1990) (waiver via course of performance for no-oral-modification clauses)
- Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d 51 (Ohio 1989) (unjust enrichment cannot replace a valid contract)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (summary judgment standard; burden shifting on Civ.R.56)
- Fields Excavating, Inc. v. Intrak, Inc., 1990 (Ohio App. 1990) (modification clause waiver under RC 1302.12(D))
- State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372 (Ohio 2005) (summary judgment standard and de novo review)