602 F. App'x 232
6th Cir.2015Background
- Owl Wireless entered a 2008 two-year distributor agreement with Page Plus setting prices, promising best available prices, and requiring price changes to apply to all distributors; Page Plus was to transfer accounts for Blackstone and Budget to Owl.
- Page Plus owners Harris and Lizdas formed SNAP in late 2008; they later claimed an oral assignment of Page Plus’s contract rights to SNAP effective Jan. 1, 2009, but made no written notice to Owl and gave inconsistent sworn statements during litigation.
- SNAP sold prepaid minutes to Blackstone and Budget starting in 2009, generating over $22 million in sales; Owl raised certain card prices slightly in Sept. 2009, narrowing SNAP’s advantage.
- Page Plus first sued Owl in 2010; after procedural adjustments, Page Plus and SNAP filed the present suit asserting contract claims (SNAP alleging it was assignee) and Owl asserted counterclaims alleging sales to exclusive customers.
- The district court granted summary judgment sua sponte to Owl, concluding SNAP failed to show a genuine factual dispute that Page Plus validly assigned the contract to SNAP; Owl then voluntarily dismissed its counterclaims; appeals followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court gave adequate Rule 56 notice before granting summary judgment sua sponte | SNAP: court never gave notice it would grant summary judgment on assignment | Owl: prior motions (motion in limine) and the Oct. 5 conference put parties on notice that assignment evidence must be produced | Court: No abuse of discretion; parties had notice and opportunity and suffered no prejudice |
| Whether SNAP produced sufficient evidence to create a genuine dispute that Page Plus validly assigned the contract | SNAP: sworn declarations, emails, and bookkeeping exchanges support an oral assignment | Owl: evidence is conclusory, contradicted by earlier sworn filings, and lacks details or consideration | Court: De novo review; SNAP’s evidence is insufficient—summary judgment for Owl affirmed |
| Whether Owl’s prior favorable rulings on counterclaims (breach by sales to Blackstone/Budget) are appealable after Owl’s voluntary dismissal | SNAP/Page Plus: challenge court’s interpretation relevant to Owl’s counterclaims | Owl: had voluntarily dismissed counterclaims with reservation; matters resolved below | Court: Issues tied only to dismissed counterclaims are not appealable by SNAP (consented-to favorable judgment); related appeal dismissed |
| Mootness of Owl’s cross-appeal regarding counterclaims | Owl: reserved right to reassert if SNAP prevailed on appeal | SNAP/Page Plus: argued dismissal resolves those claims | Court: Owl’s cross-appeal dismissed as moot after stipulated dismissal of counterclaims |
Key Cases Cited
- Smith v. Perkins Bd. of Educ., 708 F.3d 821 (6th Cir. 2013) (standard for whether court’s sua sponte summary-judgment notice was adequate)
- Montell v. Diversified Clinical Servs., 757 F.3d 497 (6th Cir. 2014) (de novo review of summary-judgment legal determinations)
- Marie v. Am. Red Cross, 771 F.3d 344 (6th Cir. 2014) (summary-judgment standards on sufficiency of evidence)
- Zwick & Zwick v. Suburban Const. Co., 134 N.E.2d 733 (Ohio Ct. App. 1956) (assignee must allege and prove assignment)
- Nee v. State Indus., Inc., 3 N.E.3d 1290 (Ohio Ct. App. 2013) (assignment requires intent and consideration)
- Tidewater Fin. Co. v. Cowns, 968 N.E.2d 59 (Ohio Ct. App. 2011) (damages as an essential element of contract claim)
- Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009) (litigants generally may not appeal favorable judgments entered with their consent)
- ASARCO, Inc. v. Sec’y of Labor, 206 F.3d 720 (6th Cir. 2000) (same principle on appealability of consented-to favorable judgments)