Prime Invests., L.L.C. v. Altimate Care, L.L.C. , 2022 Ohio 1181 ( 2022 )

[Cite as Prime Invests., L.L.C., v. Altimate Care, L.L.C., 2022-Ohio-1181.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Prime Investments, LLC, :
Plaintiff-Appellant, : No. 20AP-526
(C.P.C. No. 19CV-1543)
v. :
(REGULAR CALENDAR)
Altimate Care, LLC et al., :
Defendants-Appellees. :
D E C I S I O N
Rendered on April 7, 2022
On brief: Cooper & Elliot, LLC, Barton R. Keyes, and Adam
P. Richards for appellant. Argued: Barton R. Keyes.
On brief: The Saks Law Office, LLC, and Jeffrey Saks, for
appellee. Argued: Richard Schoenstein.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, J.
{¶ 1} Plaintiff-appellant, Prime Investments, LLC ("Prime"), appeals from a
judgment of the Franklin County Court of Common Pleas, dismissing Prime's complaint
against defendants-appellees, Irene Mendyuk, Ninell Mendyuk, and Altimate Care LLC
("Altimate"), for failure to state a claim upon which relief may be granted. For the reasons
that follow, we reverse.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In June 2015, appellee, Irene Mendyuk, an Officer and Shareholder in
Altimate, contacted Prime, a Maryland Limited Liability Company, to discuss retaining
Prime to help sell Altimate. (Apr. 17, 2019 First Am. Compl. at 2.) Over much of the next
year, Prime worked with appellees to obtain financial information needed for Prime's
No. 20AP-526 2
valuation. Id. Appellees executed a Broker Agreement with Prime on behalf of Altimate
dated June 9, 2016. Id.{¶ 3} The Broker Agreement provides in relevant part as follows:
In the event that the Business is sold, exchanged, leased or
otherwise disposed of within twenty-four months after the
Selling Period or any extension thereof to any person, firm or
other entity whom Seller or Broker or any agent of Seller or
Broker, during the Selling Period or any extension thereof,
obtained a signed Non-Disclosure Agreement, Seller shall
immediately pay Broker's commission as set forth herein, as
if such sale, exchange, lease or other disposition occurred
during the Selling Period.
(First Am. Compl., Ex. A at 2.)
{¶ 4} In November 2016, Prime and the appellees agreed to extend the term of the
Broker Agreement through November 28, 2017. (First Am. Compl. at 2) Within the Selling
Period as extended, Prime obtained a signed non-disclosure agreement from and on behalf
of non-party Michael Pollak and any potential investors, equity partners, and agents. (First
Am. Compl. at 3.)
{¶ 5} Effective June 22, 2018, appellees executed a Membership Purchase
Agreement with one of Pollak's potential investors or equity partners. Id. In that
Membership Purchase Agreement, appellees represented and warranted that they had
engaged Prime as their broker in connection with the agreement. Id. According to the
complaint, "[i]n early December, the closing of the sale appeared imminent." Id. at 4.
Thereafter, Prime emailed a commission statement to the buyer's counsel (with figures
based on information then known to Prime), with a copy to defendants' counsel. The
complaint alleges that "Ninell Mendyuk denied that defendants had signed a 7%
commission agreement," and informed Prime "the deal was off." Id.
{¶ 6} The complaint provides that in January 2019, a potential investor or equity
partner of Pollak purchased Altimate for $13 million, but appellees refused to pay Prime.
The complaint does not identify the purchaser by name.
{¶ 7} On February 20, 2019, Prime filed its complaint against appellees alleging
claims for breach of contract and unjust enrichment. Appellees filed a motion to dismiss
the complaint, pursuant to Civ.R. 12(B)(6), on April 9, 2019. Prime, however, amended the
No. 20AP-526 3
complaint on April 17, 2019 to add a claim for promissory estoppel. Prime's amended
complaint expressly incorporated the allegations in the original complaint and attached
contract documents thereto.
{¶ 8} On May 1, 2019, appellees filed a motion to dismiss the amended complaint,
pursuant to Civ.R. 12(B)(5) and 12(B)(6), alleging insufficiency of service of process and
failure to state a claim upon which relief may be granted. On October 23, 2020, the trial
issued a decision and judgment entry dismissing Prime's amended complaint for failure to
state a claim for relief. In dismissing in breach of contract claim, the trial court concluded:
Prime's Amended Complaint merely asserts that Prime
obtained a signed NDA [Non-disclosure agreement] from
Pollak on October 26, 2017, just one month before the
expiration of the Selling Period. Furthermore, Prime's
Amended Complaint never identifies the actual buyer of
Altimate's business. The Court agrees with Altimate that such
omission from Prime's Amended Complaint demonstrates
that Defendants did not procure the actual buyer of Altimate.
Rather, as Altimate suggests in its Reply, what appears to have
happened here is that Pollak assumed the role of broker.
Prime introduced Altimate to Pollak, and Pollak ultimately
secured a buyer ready, willing, and able to purchase
Defendants' business-Pollak's "potential investors" and/or
"potential equity partners." Accordingly, the Court declines to
allow Prime's claim that it procured a buyer during the Selling
Period to proceed because the Amended Complaint fails to
sufficiently state such claim to survive Defendants' Civ.R.
12(B)(6) Motion to Dismiss.
(Oct. 23, 2020 Decision & Entry at 26-27.)
{¶ 9} The trial court also dismissed Prime's equitable claims sounding in unjust
enrichment and promissory estoppel for failure to state a claim upon which relief may be
granted. Prime timely appealed to this court from the October 23, 2020 judgment.
II. ASSIGNMENT OF ERROR
{¶ 10} Appellant assigns the following as trial court error:
The trial court erred in granting appellees' motion to dismiss
for failure to state a claim.
III. STANDARD OF REVIEW
No. 20AP-526 4
{¶ 11} Civ.R. 12(B)(6) permits a defendant to move the trial court for dismissal of a
complaint for failure to state a claim upon which relief can be granted. A Civ.R. 12(B)(6)
motion to dismiss is a procedural device that tests the sufficiency of the complaint. O'Brien
v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975). In ruling on a motion
to dismiss pursuant to Civ.R. 12(B)(6), the court "must construe the complaint in the light
most favorable to the plaintiff, presume all factual allegations in the complaint are true, and
make all reasonable inferences in favor of the plaintiff." Henton v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 16AP-768, 2017-Ohio-2630, ¶ 7, citing Coleman v. Columbus State
Community College, 10th Dist. No. 15AP-119, 2015-Ohio-4685, ¶ 6, citing Mitchell v.
Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). The dismissal of a complaint for failure
to state a claim is proper when it appears, beyond doubt, that the plaintiff can prove no set
of facts entitling him to relief. Hostacky v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
21AP-349, 2021-Ohio-4464, ¶ 4. " '[A]s long as there is a set of facts, consistent with the
plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a
defendant's motion to dismiss.' " Estate of Tokes v. Dept. of Rehab. & Corr., 10th Dist. No.
18AP-723, 2019-Ohio-1794, ¶ 12, quoting York v. Ohio State Hwy. Patrol, 60 Ohio St.3d
143, 145 (1991).
{¶ 12} When reviewing a decision on a Civ.R. 12(B)(6) motion to dismiss for failure
to state a claim upon which relief can be granted, this court's standard of review is de novo.
Foreman v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-15, 2014-Ohio-2793, ¶ 9.
IV. LEGAL ANALYSIS
A. Assignment of Error
1. Breach of Contract
{¶ 13} "A cause of action for breach of contract requires the claimant to establish the
existence of a contract, the failure without legal excuse of the other party to perform when
performance is due, and damages or loss resulting from the breach." Lucarell v.
Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-5, ¶ 41, citing Natl. City Bank of
Cleveland v. Erskine & Sons, 158 Ohio St. 450 (1953), paragraph one of the syllabus,
Tidewater Fin. Co. v. Cowns, 197 Ohio App.3d 548, 2011-Ohio-6720, ¶ 12 (1st Dist.),
Carpenter v. Long, 196 Ohio App.3d 376, 2011-Ohio-5414, ¶ 220 (2d Dist.), Jarupan v.
Hanna, 173 Ohio App.3d 284, 2007-Ohio-5081, ¶ 18 (10th Dist.).
No. 20AP-526 5
{¶ 14} If a contract is not ambiguous, it must be enforced as written. KeyBank Natl.
Assn. v. Columbus Campus, LLC, 10th Dist. No. 11AP-920, 2013-Ohio-1243, ¶ 27. The
purpose of contract construction is to discover and effectuate the intent of the parties.
Graham v. Drydock Coal Co., 76 Ohio St.3d 311 (1996), citing Skivolocki v. E. Ohio Gas
Co., 38 Ohio St.2d 244 (1974), paragraph one of the syllabus. The intent of the parties is
presumed to reside in the language they chose to use in their agreement. Kelly v. Med. Life
Ins. Co., 31 Ohio St.3d 130 (1987), paragraph one of the syllabus. If the terms are clear and
unambiguous, courts cannot create a new agreement by finding an intent not expressed in
the clear language employed by the parties. Shifrin v. Forest City Ent., Inc., 64 Ohio St.3d
635, 638 (1992), syllabus.
{¶ 15} For its breach of contract claim, Prime's amended complaint asserts the
following alternative theories of recovery:
Prime earned a commission under the Broker Agreement,
including because Prime procured a buyer ready, willing, and
able to buy defendants' business within the defined Selling
Period as extended, and because within 24 months after the
Selling Period as extended, defendants' business was sold to
a person, firm, or entity from whom Prime obtained a signed
nondisclosure agreement within the Selling Period as
extended.
(Emphasis added.) (First Am. Compl. at 6.)
{¶ 16} There is no dispute that Prime had the exclusive right to sell Altimate during
the term of the Broker Agreement. It is also understood by the parties that every
prospective buyer was required to sign a Non-Disclosure Agreement ("NDA"). The Broker
Agreement contains the following provisions regarding Prime's commission:
[1]. Seller agrees that if during the Selling Period or any
extension thereof (1) Broker procures a Buyer ready, willing
and able to buy the Business * * * with the terms hereof or (2)
any agreement by any party is made for the sale * * * of the
Business, * * * Broker shall immediately become entitled to a
commission equal to the greater of $50,000 ($50,000 is the
"Minimum Commission") or 7% of the Total Price. 1
1 Under the Broker Agreement " 'Total Price' as used herein includes cash and all other consideration furnished
by the Buyer including, without limitation, the purchase price of the assets (including Collateral Agreements),
any obligations assumed by the Buyer and the purchase price of corporate stock plus liabilities of the
corporation being sold." (First Am. Compl., Ex. A at 2.)
No. 20AP-526 6
[2.] In the event that the Business is sold * * * within twenty-
four months after the Selling Period or any extension thereof
to any person, firm or other entity whom Seller or Broker or
any agent of Seller or Broker, during the Selling Period or any
extension thereof, obtained a signed Non-Disclosure
Agreement, Seller shall immediately pay Broker's commission
as set forth herein, as if such sale * * * occurred during the
Selling Period.
(Emphasis added.) (First Am. Compl., Ex. A at 2.)2
{¶ 17} In our view, the intent of the parties is clear from the plain language of the
Broker Agreement, as the enumerated Sections of Paragraph 1 are disjunctive. Prime earns
a Minimum Commission under Paragraph 1 Section (1), if no sale occurs within the Selling
Period, but Prime procured a ready, willing, and able buyer with the Selling Period.3 Prime
earns a commission under Paragraph 1 Section (2), if a sales agreement is executed by any
person within the Selling Period and the sale closes within the Selling Period or within 24
months thereafter.4 Prime earns a commission under Paragraph 2, if Altimate is sold to a
person, firm, or entity, in the 24-month period immediately following the Selling Period,
provided the buyer signed and NDA within the Selling Period.
{¶ 18} The amended complaint alleges that the parties executed the Broker
Agreement on June 9, 2016, with an initial Selling Period of June 9, 2016, through June 8,
2017. In November 2016, the parties agreed to extend the Broker Agreement and the
Selling Period to November 28, 2017. The amended complaint further alleges that Prime
obtained a signed NDA from Pollak and any potential investors, equity partners, and agents
within the Selling Period. According to the amended complaint, a potential investor, equity
partner, or agent of Pollak purchased Altimate for $13 million in January 2019, which is
within the 24-month period immediately following the Selling Period. Finally, the
amended complaint alleges appellees refused to pay a commission to Prime.
{¶ 19} Based on the allegations in the amended complaint, Prime's right to recovery
in this case, if any, arises under Paragraph 2 of the Broker Agreement because the sale
occurred outside the Selling Period, but within the 24-month period immediately following
2 The paragraphs in the Broker Agreement are not numbered. For ease of discussion, we have numbered the
two relevant paragraphs. The numbers (1), and (2) within Paragraph 1 are original.
3 Because the initial Selling Period was extended to November 28, 2017, the term "Selling Period" refers to the
two-year period between November 28, 2015, and November 28, 2017.
4 Because Altimate was sold, the provisions pertaining to exchanges, leases, and asset transfers are irrelevant.
No. 20AP-526 7
the Selling Period. Paragraph 1 Section (1) does not apply to the transaction because a sale
occurred. Paragraph 1 Section (2) does not apply because no agreement for the sale of
Altimate was made within the Selling Period.
{¶ 20} When the factual allegations in the amended complaint are construed in
Prime's favor, and we draw all reasonable inferences therefrom, Prime's amended
complaint alleges that Pollak, or an entity associated with Pollak, signed an NDA within the
Selling Period and Pollak, or an entity associated with Pollak, purchased Altimate in the 24-
month period immediately following the Selling Period. (First Am. Compl. at 3 and 5.) If
proven true, these facts obligated appellees, under Paragraph two of the Broker Agreement,
to immediately pay Prime a commission equal to seven percent of the total price. There is
no dispute that appellees refused to pay Prime. Thus, Prime's amended complaint states a
claim for relief against appellees for a breach of the Broker Agreement.
{¶ 21} The trial court determined Prime's amended complaint failed to state a claim
for breach of the Broker Agreement because Prime's amended complaint does not identify
the buyer with greater particularity. We do not believe that Ohio law required Prime to
plead the claim so precisely.
{¶ 22} Civ.R. 8(A) requires "[a] pleading that sets forth a claim for relief * * * shall
contain (1) a short and plain statement of the claim showing that the party is entitled to
relief, and (2) a demand for judgment for the relief to which the party claims to be entitled."
Pursuant to Civ.R. 8(A) "the complaint must 'concisely set forth * * * those operative facts
sufficient to give "fair notice of the nature of the action." ' " Morrissette v. DFS Servs., LLC,
10th Dist. No. 10AP-633, 2011-Ohio-2369, ¶ 15, quoting Johnson v. Ferguson-Ramos, 10th
Dist. No. 04AP-1180, 2005-Ohio-3280, ¶ 49, discretionary appeal not allowed, 107 Ohio
St.3d 1410, 2005-Ohio-5859, quoting Welch v. Finlay Fine Jewelry Corp., 10th Dist. No.
01AP-508, 2002 Ohio App. LEXIS 503 (Feb. 12, 2002), quoting DeVore v. Mut. of Omaha,
32 Ohio App.2d 36, 38 (1972).
{¶ 23} Under pleading rules applicable in Ohio, "a plaintiff is not required to prove
his or her case at the pleading stage. Very often, the evidence necessary for a plaintiff to
prevail is not obtained until the plaintiff is able to discover materials in the defendant's
possession." York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144-45 (1991). "If the
plaintiff were required to prove his or her case in the complaint, many valid claims would
No. 20AP-526 8
be dismissed because of the plaintiff's lack of access to relevant evidence. Consequently, as
long as there is a set of facts, consistent with the plaintiff's complaint, which would allow
the plaintiff to recover, the court may not grant a defendant's motion to dismiss." Id.{¶ 24} In support of dismissal, the trial court noted that "Prime does not state or
otherwise demonstrate in its Amended Complaint that through discovery it could later
identify the ultimate buyer." (Decision & Entry at 19.) It is evident to this court, however,
that specific information identifying the buyer is necessarily within the knowledge,
possession, or control of appellees, as sellers, and that such information will be readily
accessible to Prime through the process of discovery. The record shows that Prime had
initiated the process of discovery prior to judgment but the trial court stayed discovery
pending a ruling on the motion to dismiss. Prime's amended complaint should not be
subject to dismissal simply because Prime lacks immediate access to relevant evidence.
York at 145.
{¶ 25} In Ford v. Brooks, 10th Dist. No. 11AP-664, 2012 Ohio 943, purchasers
alleged that their real estate agent breached R.C. Chapter 4735 by sharing the purchasers'
confidential information with the ultimate buyer of the property and that the agent failed
to be loyal to them. The trial court dismissed purchaser's complaint for failure to state a
claim for relief because the purchaser's failed to identify the specific confidential
information the agent had shared with the buyer. On appeal, this court held that the trial
court erred in dismissing the claim for breach of fiduciary duty as the purchasers' allegation
the agent shared confidential information with the buyer of the property, without
permission, was, itself, a factual allegation that appellees failed to observe a fiduciary duty
owed to the purchasers. In so holding, the Brooks court also concluded that "[u]nder a
notice-pleading standard, appellants are not required to particularly identify what
confidential information Brooks allegedly shared or when that sharing allegedly occurred."
Brooks at 15.
{¶ 26} Here, Prime's allegation that Altimate was sold to "a potential investor or
equity partner of Mr. Pollak" was sufficient to provide fair notice to appellees of the nature
of the action. (First Am. Compl. at 5.) Ohio's notice-pleading standard did not require that
Prime identify the buyer by name or provide further information about the buyer in order
to state a claim for breach of the Broker Agreement. See Brooks. Because there is a set of
No. 20AP-526 9
facts, consistent with Prime's complaint, which would allow Prime to recover from
appellees for a breach of the Broker Agreement, the trial court erred when it granted
appellees' motion to dismiss. Estate of Tokes at ¶ 12; York at 145.
{¶ 27} We note that the trial court concluded, alternatively, the allegations in the
amended complaint were insufficient to state a claim for relief because Prime failed to allege
facts that would establish Pollak was a ready, willing, and able buyer on execution of the
NDA. The trial court explained its reasoning as follows:
The Court finds that the fact that Prime obtained a signed
NDA from Pollak during the Selling Period does not support
Prime's contention that it procured a buyer during the Selling
Period. Securing a signed NDA cannot logically equate to
procuring a potential buyer and thus be entitled to a
commission under the Broker Agreement. If it did, then the
24-month protection period for obtained NDAs would not
also require that the NDA signatory be the ultimate purchaser
as well. * * * Substantial efforts directed by a broker to a
specific potential buyer does not demonstrate an ability to
establish that such buyer was ready, willing, and able to buy
the business. A broker could put forth all the effort in the
world to bring about a sale to an insolvent person or entity,
but that person or entity would not be ready, willing, and able
to purchase a business for millions of dollars. Similarly,
obtaining that insolvent party's signature on an NDA does
not transmogrify the party into a ready and able buyer.
Beyond Prime's alleged "substantial efforts" and Pollak's
signing of the NDA, its Amended Complaint simply fails to
put forth factual allegations demonstrating it could
ultimately prove Pollak was ready, willing, and able to
purchase Altimate' s business during the Selling Period.
(Emphasis added.) (Decision & Entry at 21-22.)
{¶ 28} The trial court's ruling adopts a construction of the broker agreement that is
inconsistent with relevant language employed by the parties, as the term "ready, willing,
and able buyer" does not appear in Paragraph 2 of the Broker Agreement. As we have
previously determined, under the plain language of the Broker Agreement, the "ready,
willing, and able" language applies only to the scenario described in Paragraph 1, Section
(1), where no sale occurs.
No. 20AP-526 10
{¶ 29} Here, it is alleged in the amended complaint that Pollak signed an NDA
within the Selling Period and Pollak subsequently purchased Altimate within the 24-month
period immediately following the Selling Period. Whether Pollak was a ready, willing, and
able buyer at the time he signed the NDA is irrelevant to appellees' obligation to pay Prime
a commission under Paragraph 2 of the Broker Agreement. The trial court recognized that
"reference to the NDA in the Broker Agreement is in a paragraph separate from that which
identifies the circumstances occurring during the Selling Period." (Decision & Entry at 21.)
Yet the trial conflated the two paragraphs and, in so doing, created a new agreement
expressing an intent not supported by the language used by the parties in the Broker
Agreement. Accordingly, we hold that the trial court erred when it relied on an erroneous
interpretation of the Broker Agreement in dismissing Prime's complaint.
{¶ 30} We note that Prime's amended complaint alleges alternatively, even if Pollak
was not associated with the buyer at the time of sale, appellees delayed the purchase so that
Pollak could divest himself of the buyer prior to the sale and appellees could avoid paying
Prime's commission.5 As the Supreme Court of Ohio has concluded, "every contract
imposes an implied duty of good faith and fair dealing in its performance and enforcement."
Lucarell at ¶ 42, citing Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433, 443,
(1996); Restatement of the Law 2d, Contracts, Section 205 (1981). "[G]ood faith' is a
compact reference to an implied undertaking not to take opportunistic advantage in a way
that could have not been contemplated at the time of drafting, and which therefore was not
resolved explicitly by the parties." Ed Schory & Sons at 443-44, quoting Kham & Nate's
Shoes No. 2, Inc. v. First Bank of Whiting, 908 F.2d 1351, 1357 (7th Cir.1990). In our view,
the alternative set of facts alleged in the complaint, if proven true, establish that appellees
sought to circumvent the provisions in the Broker Agreement related to Prime's
commission. Thus, the amended complaint arguably states a claim for a breach of the
implied duty of good faith and fair dealing in the Broker Agreement.
{¶ 31} The trial court determined that Prime's alternative allegations were nothing
more than legal conclusions because Prime used the phrase "information and belief" in
setting forth the factual basis of its claim. We find that Prime's allegation appellees "delayed
5The complaint alleges that in return for Pollak's cooperation, he received cash after the closing of the sale,
equity ownership in two Altimate affiliates that were also being sold, a percentage of future Altimate profit.
(First Am. Compl. at 5.)
No. 20AP-526 11
closing on the sale of Altimate Care until Mr. Pollak was removed as an equity participant,"
was, itself, a factual allegation supporting Prime's claim appellees breached the duty of good
faith and fair dealing in the Broker Agreement. See Brooks at ¶ 15. Moreover, pleading facts
based upon the pleaders "information and belief " is expressly authorized by Civ.R. 11.6
{¶ 32} For the foregoing reasons, we hold that the trial court erred when it granted
appellees' motion to dismiss Prime's breach of contract claim.
2. Unjust Enrichment
{¶ 33} Prime's amended complaint alleges at paragraph 40: "Alternatively, and in
the event the Broker Agreement is determined to not extend to the period covering the sale
of Altimate Care, unjust enrichment and promissory estoppel theories preclude Defendants
from avoiding payment of the 7% commission to Prime."
{¶ 34} "Absent bad faith, fraud, or some other illegality, an equitable action for
unjust enrichment will not lie when the subject of the claim is governed by an express
contract." Cent. Allied Ents., Inc. v. Adjutant Gen. Dept., 10th Dist. No. 10AP-701, 2011-
Ohio-4920, ¶ 39; accord Maghie & Savage, Inc. v. P.J. Dick, Inc., 10th Dist. No. 08AP-487,
2009-Ohio-2164, ¶ 33; Morton Bldgs., Inc. v. Correct Custom Drywall, Inc., 10th Dist. No.
06AP-851, 2007-Ohio-2788, ¶ 32. As we have determined, the amended complaint alleges
facts which, if proven, support Prime's claim for breach of the Broker Agreement based
upon the sale of Altimate to Pollak in January 2019. Nevertheless, appellant's have alleged
that appellees failed to act in good faith when it failed to pay Prime a commission. We are
also aware that appellee's have not yet filed an answer to the amended complaint and no
discovery has been conducted. Accordingly, we find that the trial court erred when it
dismissed Prime's alternative claim for unjust enrichment at this early stage in the
proceedings.
3. Promissory Estoppel
{¶ 35} Promissory estoppel claims may be pleaded alternatively to breach of
contract claims, but the oral agreement on which the promissory estoppel claim is based
cannot be used to alter the unambiguous written contract. Ed Schory & Sons at 440.
"Promissory estoppel is an equitable doctrine that comes into play when the requisites of
6Civ.R. 11 provides that the "signature of an attorney or pro se party constitutes a certificate by the attorney
or party that the attorney or party has read the document; that to the best of the attorney's or party's
knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay."
No. 20AP-526 12
contract are not met, yet a promise should be enforced to avoid injustice." APCO Indus. v.
Braun Constr. Group., Inc., 10th Dist. No. 19AP-430, 2020-Ohio-4762, ¶ 60, citing
Olympic Holding Co., L.L.C. v. Ace Ltd., 122 Ohio St.3d 89, 2009-Ohio-2057, ¶ 39-40.
" 'Promissory estoppel is inconsistent with the existence of an express written contract.' "
Kashif v. Cent. State Univ., 133 Ohio App.3d 678, 684 (10th Dist.1999), quoting Warren v.
Trotwood-Madison School Dist. Bd. of Edn., 2d Dist. No. 17457, 1999 Ohio App. LEXIS
1035 (Mar. 19, 1999). "Consequently, a plaintiff cannot recover for promissory estoppel
where the promise forming the basis of that claim is contained within an express written
contract." APCO Indus. at ¶ 60, citing Right-Now Recycling, Inc. v. Ford Motor Credit Co.,
LLC, 644 Fed.Appx. 554, 558 (6th Cir.2016); Americana Invest. Co. v. Natl. Contracting &
Fixturing, LLC, 10th Dist. No. 15AP-1010, 2016-Ohio-7067, ¶ 13-14; TLC Health Care
Servs., LLC v. Enhanced Billing Servs., L.L.C., 6th Dist. No. L-08-1121, 2008-Ohio-4285,
¶ 24.
{¶ 36} Appellant's amended complaint sets forth the factual basis underlying the
promissory estoppel claim as follows: "Defendants promised Prime that Prime would be
paid a commission out of the sale of Altimate Care, including by representing and
warranting that defendants had engaged Prime as their broker and by stating that
defendants were Prime's clients. Defendants made these statements directly to Prime or
knew that Prime would receive and rely on these statements." (First Am. Compl. at 8.)
Because this promise is contained within the written Broker Agreement, Prime cannot
obtain relief under the alleged oral agreement that forms the basis of its promissory
estoppel claim. Therefore, we agree with the trial court that Prime's amended complaint
fails to state a claim for promissory estoppel upon which relief may be granted, albeit for
different reasons than the trial court.
V. CONCLUSION
{¶ 37} Having sustained Prime's sole assignment of error, in part, as to dismissal of
the contract claim and the unjust enrichment claim, but having overruled Prime's sole
assignment of error as to the dismissal of the promissory estoppel claim, the judgment of
the Franklin County Court of Common Pleas is affirmed in part, reversed in part, and the
matter is remanded to the trial court for further proceedings.
Judgment affirmed in part, reversed in part, and cause remanded.
No. 20AP-526 13
KLATT, and SADLER, JJ., concur.
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