Fox Consulting v. Spartan Warehouse & Distrib., Inc.Fox Consulting v. Spartan Warehouse & Distrib., Inc.
Taft, Stettinius & Hollister, LLP, and Nicholas Pieczonka, and Burman & Robinson and Robert N. Burman for Defendant-Appellee.
STAUTBERG, Judge.
{¶1} This is an appeal from the trial court’s granting of summary judgment in favor of defendant-appellee Spartan Warehouse and Distribution, Inc., d.b.a. Spartan Logistics (“Spartan“). For the following reasons, we affirm.
{¶2} On April 7, 2011, plaintiff-appellant The Fox Consulting Group, Inc., d.b.a. Schooley Mitchell Telecom Consultants (“Fox Consulting“), entered into a contract with Spartan whereby Fox Consulting agreed to recommend ways for Spartan to save money in its telecom systems. In exchange, Spartan agreed to pay Fox Consulting a fee equal to 50 percent of the savings that resulted from any recommendation that Spartan chose to use. Fox Consulting’s fee was to be collected for a period of 36 months from the date that Spartan implemented a given recommendation.
{¶3} On May 20, 2011, Spartan agreed to use Fox Consulting’s “Recommendations 1 and 2.” According to Fox Consulting, these recommendations were implemented over several quarters. In January
This email serves as notice that we are terminating this contract effective immediately for unsatisfactory performance. Although we should expect a refund for all amounts paid since promised “savings” were not achieved, we will remit final payment for [sic] of $2500 for the period ending April 2014. Acceptance of this payment will constitute acceptance and termination of all past and future obligations to each other.
{¶4} Spartan sent Fox Consulting a check dated April 8, 2104, for $2500, accompanied by a copy of Harmon’s April 8, 2014 email. “Final settlement and termination per attached” was in the memo of the check. On April 9, 2014, Sean Fox stated in an email that final payment should be based on the six billing periods left on Recommendation 1, and nine left on Recommendation 2, and again stated that a fair buyout number for the contract would be around $27,000. On April 15, 2014, Fox Consulting deposited Spartan’s check. Spartan made no other payments to Fox Consulting.
{¶5} Fox Consulting later sued Spartan, alleging breach of contract and unjust enrichment. Spartan counterclaimed for a declaratory judgment, asking the trial court to declare that, under
{¶6} We review the granting of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) the evidence, when viewed in favor of the nonmoving party, permits only one reasonable conclusion and that conclusion is adverse to the nonmoving party.
{¶7} Fox Consulting raises four assignments of error. All relate to the trial court’s declaration that there had been an “accord and satisfaction” in this case.
{¶8} “Accord and satisfaction is an affirmative defense to a claim for money damages.” Allen v. R.G. Indus. Supply, 66 Ohio St.3d 229, 231, 611 N.E.2d 794 (1993). “An accord is a contract between a
If a person against whom a claim is asserted proves that that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, that the amount of the claim was unliquidated or subject to a bona fide dispute, and that the claimant obtained payment of the instrument, all the following apply:
(A) Unless division (B) of this section applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.
{¶9} In Fox Consulting’s first assignment of error, it contends that the trial court erred because an accord and satisfaction cannot apply “to non-existent potential future fees.” Fox Consulting argues that because the fees from the implementation of Recommendations 1 and 2 were not due at the time it cashed the $2500 check, there was no “claim” as that term is used in
{¶10} In support of this argument, Fox Consulting relies heavily on a Texas case, Milton M. Cooke Co. v. First Bank & Trust, 290 S.W.3d 297 (Tex.App.2009). In that case, First Bank & Trust (“First Bank“) sued customers Milton M. Cooke Co. and Milton M. Cooke, Jr., (collectively “Cooke Co.“) for monies due on two promissory notes. Cooke Co. admitted that they had not paid on those notes, but raised the defense of accord and satisfaction. The parties stipulated to the facts that—in an unrelated course of events—First Bank had cashed unauthorized checks drawn on Cooke Co. accounts, that Cooke Co. and First Bank had had discussions in which Cooke Co. wanted to offset its losses from the unauthorized checks with its loan obligations to First Bank, and that First Bank had refused this “off-set” offer. Thereafter, Cooke Co. made its customary monthly payments on its loans, and in the memo of each check wrote “payment in full.” At trial, Cooke Co. argued that it had proven an accord and satisfaction and that it had discharged its obligation on each loan.
{¶11} Like
{¶12} This case is different. Here, there was a dispute as to the future amounts due under the parties’ contract. Fox Consulting considered $27,439 to be a fair buyout payment. Spartan contended that they “should expect a refund for all amounts paid since promised ‘savings’
{¶13} In its second assignment of error, Fox Consulting claims that the trial court erred “by failing to examine whether Spartan’s proposed accord included a ‘conspicuous statement’ that it was intended to fully satisfy both the existing $3461.35 debt and the non-existent potential future fees.”
{¶14} Here, the trial court found that Fox Consulting received “payment which was accompanied by clear language indicating that it was full and final payment for all past and future sums.” Consequently, despite Fox Consulting’s argument to the contrary, the trial court did indeed examine Spartan’s proposed accord and determined that the language that accompanied payment to Fox Consulting met the requirements of
{¶15} “The rule relating to an offer of accord is that the offer must make clear that the offeror seeks a total discharge.” Allen, 66 Ohio St.3d at 232; see Mooney v. Finnerty, 1st Dist. Hamilton No. C-060098, 2006-Ohio-6981, ¶ 11-13.
{¶16} In this case, the phrase “final settlement and termination per attached” was written on the check that Spartan sent to Fox Consulting. Harmon’s accompanying email stated that the payment was for the period ending April 2014. It also stated that “[a]cceptance of this payment will constitute acceptance and termination of all past and future obligations to each other.” Fox Consulting asserts that this language was ambiguous because the email did not define “the period ending April 2014” or the phrase “all past and future obligations.” We find no ambiguity. The check and the email accompanying payment clearly set forth the fact that accepting Spartan’s $2500 check would constitute a settlement of the parties’ dispute concerning the amount owed under the parties’ contract. We therefore hold that the trial court did not err when it determined that there was no genuine issue of material fact concerning whether the “conspicuous statement” requirement in
{¶17} In its third assignment of error, Fox Consulting contends that because it emailed Spartan on April 9, 2014, rejecting Spartan’s April 8, 2014 $2500 offer, there was no accord and satisfaction despite the fact that it cashed Spartan’s check. Fox Consulting’s argument is two-fold. It first contends that the trial court wrongfully held that
{¶18} First, we find no indication that the trial court improperly applied
{¶19} In its fourth assignment of error, Fox Consulting contends that the trial court erred when it determined that there was a “bona fide” dispute. This argument has no merit.
{¶20} “The requirement for an actual dispute is perceived as a safeguard that protects unsophisticated creditors against overreaching debtors and ensures an adequate consideration for extinguishing the debt.” CitiBank (South Dakota) N.A. v. Perez, 191 Ohio App.3d 575, 2010-Ohio-5890, 947 N.E.2d 191 (6th Dist.), ¶ 44, citing Allen, 66 Ohio St.3d at 232. A partial payment in the absence of a bona fide dispute “is merely a thing which the party is already bound to do.” Rhoades v. Rhoades, 40 Ohio App.2d 559, 562, 321 N.E.2d 242 (1st Dist.1974).
{¶21} Here, there was a bona fide dispute between the parties. By Spartan’s calculations, it had realized no telecom savings. It expressed to Fox Consulting that it wished to terminate the parties’ contract, and felt that it was potentially entitled to a refund of monies already paid to Fox Consulting. By Fox Consulting’s calculations, Spartan had saved thousands of dollars, and would continue to save thousands of dollars through the implementation of Fox Consulting’s recommendations. Under these circumstances, we hold that the trial court did not err in finding that there was a “bona fide” dispute.
{¶22} Fox Consulting’s fourth assignment of error is overruled. The judgment of the trial court is affirmed.
Judgment affirmed.
FISCHER, P.J., and DEWINE, J., concur.
Please note:
This court has recorded its own entry this date.