Johncol, Inc. v. Cardinal Concession Servs., L.L.C.

[Cite as Johncol, Inc. v. Cardinal Concession Servs. L.L.C., 2017-Ohio-9031.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Johncol, Inc., d.b.a. Papa John's Pizza, :
Plaintiff-Appellee, :
No. 17AP-337
v. : (C.P.C. No. 16CV-996)
Cardinal Concession Services, L.L.C., : (REGULAR CALENDAR)
d.b.a. Cardinal Concessions,
:
Defendant-Appellant.
:
D E C I S I O N
Rendered on December 14, 2017
On brief: Vorys, Sater, Seymour and Pease LLP, Jacklyn J.
Ford, and Damien C. Kitte, for appellee. Argued:
Damien C. Kitte.
On brief: Soroka and Associates, LLC, Roger Soroka,
Joshua Bedtelyon, and Aaron Jones, for appellee. Argued:
Aaron Jones.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Cardinal Concession Services, L.L.C., doing business
as Cardinal Concessions, appeals the January 24 and April 10, 2017 judgments of the
Franklin County Court of Common Pleas which granted summary judgment and
prejudgment interest in favor of plaintiff-appellee, Johncol, Inc., d.b.a. Papa John's Pizza.
For the reasons that follow, we affirm in part and reverse in part.
I. Facts and Procedural History
{¶ 2} Appellant is a limited liability company operated by Scott Nail. Appellant
operates concession stands. Appellee is a Kentucky corporation which operates Papa
John's Pizza franchises. These franchises are operated by Charles Burris. Appellee
delivered pizzas to swimming pool concession stands run by appellant. Appellant then
No. 17AP-337 2
sold pizza to its customers at an increased price. For pizzas delivered in 2013, appellant
paid appellee $10,666.50 in June 2014. Appellee delivered pizzas to appellant in 2014 as
well. The deliveries made from May 2014 to September 1, 2014 are the subject of this
appeal.
{¶ 3} After making numerous unsuccessful attempts to secure payment, on
January 29, 2016, appellee filed a complaint against appellant alleging appellant accepted
but did not pay for pizzas delivered between May to September 1, 2014. The complaint
included one count for an action on account and one count for unjust enrichment.
Appellant filed an answer admitting pizzas were delivered but denying the amount
appellee alleged was due, $25,079.25.
{¶ 4} On November 4, 2016, appellee filed a motion for summary judgment.
Appellee alleged that the conduct of appellant and appellee established a contractual
relationship between the parties, appellee had performed its obligations pursuant thereto
by delivering pizza, and appellant had breached the contract for failing to pay for pizzas
delivered between May and September 1, 2014. In the alternative, appellee alleged that in
the absence of a contractual relationship, appellant was liable to appellee for payment of
the pizzas pursuant to a theory of unjust enrichment. Appellee alleged it would be unjust
for appellant to retain the products delivered without payment.
{¶ 5} Appellant filed a memorandum contra on November 18, 2016. Appellant
conceded that appellee delivered pizzas and other food products during the alleged time
period to appellant on account, but disputed there was a contract between the parties.
Appellant stated that it "questions the accuracy of the accounts," "never explicitly
admitted to owing $25,079.25 to [appellee], [and] [d]ue to the discrepancies with the
accounts, invoices and receipts * * * has not paid the alleged total of $25,079.25." (Memo.
Contra at 2.) Appellant argued the breach of contract claim failed because no contract
existed and it was barred by the statute of frauds. Specifically, in this regard, appellant
argued the statements of accounts and invoices provided by appellee did not contain a
description of nor quantity of the products delivered. Appellant further argued the unjust
enrichment claim failed because appellant was not aware of the benefit received. In this
regard, appellant argued that appellee did not provide a proper account according to
Brown v. Columbus Stamping & Mfg. Co., 9 Ohio App.2d 123 (10th Dist.1967). Appellant
finally stated that it "has taken the time to review the collection of receipts provided
No. 17AP-337 3
through the discovery process," that they "contain various names not recognizable to
[appellant], illegible signatures with no printed name on some receipts, multiple
signatures on some receipts, and what is most troubling, some receipts with absolutely no
signatures or printed names. Thus, there are discrepancies of who signed the receipts and
accepted the pizzas and/or food products when they were delivered from [appellee] to the
area where [appellant] operates its concessions." (Memo. Contra at 8-9.) Appellant
complains that appellee did not attach to its motion for summary judgment any of the
receipts. However, appellant did not attach any of the allegedly deficient receipts to its
memorandum contra.
{¶ 6} On January 24, 2017, the trial court filed a decision granting the motion for
summary judgment in favor of appellee. The trial court found the evidence submitted by
appellee adequately proves an account due and owing for $25,079.25. It further found
appellant's response constituted "vague and unsupported statements" not sufficient to
oppose summary judgment. (Decision at 3.) Finally, the court rejected appellant's statute
of fraud's argument as this action did not involve a contract for the sale of goods for more
than $500, but, rather, a series of smaller transactions between the parties, with no
transaction totaling $500 or more. The court ordered appellee to submit a proposed
judgment entry.
{¶ 7} Appellee submitted a proposed judgment entry and appellant objected to
the same arguing that appellee's proposed date to begin calculating prejudgment interest,
September 1, 2014, is not supported by the evidence presented, nor the prior business
dealings between the parties. Appellant argued the interest should apply from the date on
which the debt was due to be paid, not the day the debt was initially incurred. In support
of this argument, appellant pointed to: (1) the nature of an action on account, which
essentially requires payment at a later date, (2) the invoices presented by appellee which
were dated September 30, 2016 and stated "payable upon receipt," (3) the past business
dealings of the parties whereby appellant did not pay for pizzas received in 2013 until
June 2014, and (4) receipts presented by appellee to appellant, some of which specified
the payment was on account and some which stated the balance due at the time of
delivery was $0. Appellant urged the court to consider the prior course of dealing
between the parties and to make a determination "of when the Parties reasonably would
have believed the debt to have become 'due and payable.' " (Objs. at 4.) Appellee filed a
No. 17AP-337 4
response arguing it was entitled to prejudgment interest, pursuant to R.C. 1343.03(A),
and that it proposed September 1, 2014 as the accrual date to alleviate the need to
calculate interest on hundreds of debts with start dates throughout summer 2014.
Appellee also points out the statements of accounts list the due date as the date of
delivery. Finally, appellee argued it is disingenuous for appellant to take advantage of its
"courteous" gesture of receiving the payment for delivered 2013 pizzas one year later in
June 2014 and that such gesture did not alter the date of payment for subsequent
transactions. (Response at 3.)
{¶ 8} On April 10, 2017, the trial court filed a judgment entry granting judgment
in favor of appellee for $25,079.25 and ordered appellant to pay appellee prejudgment
interest "at the rate allowed by law calculated beginning on September 1, 2014, which
represents the latest due date on the invoice statements attached as Exhibit A to
[appellee's] Complaint." (Jgmt. Entry at 1.)
II. Assignments of Error
{¶ 9} Appellant appeals and assigns the following two assignments of error for
our review:
[I.] THE TRIAL COURT ERRORED [sic] BY GRANTING
SUMMARY JUDGMENT WHERE A GENUINE DISPUTE
OF MATERIAL FACT REMAINS.
[II.] THE TRIAL COURT ERRORED [sic] BY ORDERING
PREJUDGMENT INTEREST TO ACCURE [sic]
BEGINNING ON SEPTEMBER 1, 2014.
III. Discussion
A. First Assignment of Error - Summary Judgment
{¶ 10} In its first assignment of error, appellant argues the trial court erred in
granting summary judgment in favor of appellee because: (1) appellee's motion for
summary judgment did not demonstrate all the essential elements of a breach of contract
claim as is required for an action on account, and (2) because Nail's affidavit and evidence
submitted in opposition to the motion for summary judgment were sufficient to meet the
reciprocal burden.
{¶ 11} Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,
No. 17AP-337 5
show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Accordingly, summary judgment is appropriate
only under the following circumstances: (1) no genuine issue of material fact remains to
be litigated, (2) the moving party is entitled to judgment as a matter of law, and
(3) viewing the evidence most strongly in favor of the non-moving party, reasonable
minds can come to but one conclusion, that conclusion being adverse to the non-moving
party. Harless v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66 (1978).
{¶ 12} "[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record before the
trial court which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). " 'The
requirement that a party seeking summary judgment disclose the basis for the motion and
support the motion with evidence is well founded in Ohio law.' " Vahila v. Hall, 77 Ohio
St.3d 421, 429 (1997), quoting Mitseff v. Wheeler, 38 Ohio St.3d 112, 115 (1988). Thus,
the moving party may not fulfill its initial burden simply by making a conclusory assertion
that the non-moving party has no evidence to prove its case. Dresher at 293.
{¶ 13} Rather, the moving party must support its motion by pointing to some
evidence of the type set forth in Civ.R. 56(C), which affirmatively demonstrates that the
non-moving party has no evidence to support the non-moving party's claims. If the
moving party has satisfied its initial burden under Civ.R. 56(C), then "the nonmoving
party * * * has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts
showing that there is a genuine issue for trial and, if the nonmovant does not so respond,
summary judgment, if appropriate, shall be entered against the nonmoving party." Id.{¶ 14} Civ.R. 56(E) states:
When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not
rest upon the mere allegations or denials of the party's
pleadings, but the party's response, by affidavit or as
otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial. If the party
does not so respond, summary judgment, if appropriate,
shall be entered against the party.
{¶ 15} "Trial courts should award summary judgment with caution, being careful
to resolve doubts and construe evidence in favor of the nonmoving party." Welco
No. 17AP-337 6
Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993), citing Murphy v.
Reynoldsburg, 65 Ohio St.3d 356 (1992). "Even the inferences to be drawn from the
underlying facts contained in the evidentiary materials, such as affidavits and depositions,
must be construed in a light most favorable to the party opposing the motion." Hannah v.
Dayton Power & Light Co., 82 Ohio St.3d 482, 485 (1998), citing Turner v. Turner, 67
Ohio St.3d 337, 341 (1993).
{¶ 16} "An account is an unsettled claim or demand by one person against another,
based upon a transaction creating a debtor and creditor relation[ship] between the
parties." (Internal quotations omitted.) Benchmark Contrs., Inc. v. Southgate Mgt., LLC,
10th Dist. No. 13AP-390, 2014-Ohio-1254, ¶ 38, quoting Gray Printing Co. v. Blushing
Brides, L.L.C., 10th Dist. No. 05AP-646, 2006-Ohio-1656, ¶ 21, quoting Am. Sec. Serv.,
Inc. v. Baumann, 32 Ohio App.2d 237, 242 (10th Dist.1972). "[T]he cause of action exists
only as to the balance that may be due one of the parties as a result of the series of
transactions." (Internal quotations omitted.) Id. "An action on an account is 'founded
upon contract' and constitutes a breach of contract claim." Id., quoting Oxford Sys.
Integration, Inc. v. Smith-Boughan Mechanical Servs., 159 Ohio App.3d 533, 2005-Ohio-
210, ¶ 16 (2d Dist.). "The purpose of an action on an account is to avoid the multiplicity of
suits necessary if each transaction between the parties (or item on the account) would be
construed as constituting a separate cause of action." (Internal quotations omitted.)
Citibank, N.A. v. Hyslop, 10th Dist. No. 12AP-885, 2014-Ohio-844, ¶ 9, quoting Citibank
(South Dakota), N.A. v. Lesnick, 11th Dist. No. 2005-L-013, 2006-Ohio-1448, ¶ 8, quoting
Baumann at 242.
{¶ 17} The elements of a prima facie case for money owed on an account are as
follows:
[T]he existence of an account, including that the account is
in the name of the party charged, and it must also establish
(1) a beginning balance of zero, or a sum that can qualify as
an account stated, or some other provable sum; (2) listed
items, or an item, dated and identifiable by number or
otherwise, representing charges, or debits, and credits; and
(3) summarization by means of a running or developing
balance, or an arrangement of beginning balance and items
that permits the calculation of the amount claimed to be due.
No. 17AP-337 7
Hyslop at ¶ 10, quoting Dept. Stores Natl. Bank v. McGee, 7th Dist. No. 12 MA 103, 2013-
Ohio-894, ¶ 16.
{¶ 18} In Brown, this court stated that, to establish a prima facie case in an action
to recover on an account, the following "fundamentals" must be present:
An account must show the name of the party charged. It
begins with a balance, preferably at zero, or with a sum
recited that can qualify as an account stated, but at least the
balance should be a provable sum. Following the balance, the
item or items, dated and identifiable by number or
otherwise, representing charges, or debits, and credits,
should appear. Summarization is necessary showing a
running or developing balance or an arrangement which
permits the calculation of the balance claimed to be due.
Brown at 126. Since Brown, we have clarified the requirements to adequately plead and
prove an account. In Hudson & Keyse, L.L.C. v. Carson, 10th Dist. No. 07AP-936, 2008-
Ohio-2570, we stated, "[i]t is not necessary that every transaction between the parties be
included." Id. at ¶ 13, modifying Brown. See also Wolf Automotive v. Rally Auto Parts,
Inc., 95 Ohio App.3d 130 (10th Dist.1994) (concluding that, although the account did not
start at a zero balance, it showed debits and credits that allowed the court to determine
the total claimed to be due and owing); Am. Express Travel Related Servs. v. Silverman,
10th Dist. No. 06AP-338, 2006-Ohio-6374 (finding that four years of credit card
statements, two affidavits, and a copy of the cardholder's agreement constituted adequate
evidence to establish an account, since it was an "unreasonable burden" for the plaintiff to
provide 30 years of statements). We have also stated a copy of a ledger sheet, or an
accounts receivable record, will ordinarily meet the requirements of an account. Brown
at 126.
{¶ 19} Appellant argues appellee did not establish its burden on summary
judgment because it presented no evidence that delivery of pizza actually happened.
Appellant points to the absence of signed receipts presented by appellee along with the
motion. Appellant also suggests several different ways appellee could have presented
evidence of delivery.
{¶ 20} Attached to appellee's motion for summary judgment is an affidavit of
Charles Burris. (Ex. A.) Burris averred that beginning May 2014 to September 1, 2014,
appellee delivered pizzas to appellant on account and appellant failed to pay for the
No. 17AP-337 8
products. Burris averred the exhibits attached to his affidavit were true and accurate
copies of: (1) the statements of accounts (Ex. A2), (2) invoices sent from appellee to
appellant (Ex. A3), and (3) correspondences between representatives of appellee and Nail
regarding deliveries made from May to September 1, 2014, and the amount due of
$25,079.25. Burris averred the information contained in exhibits A2 and A3 were kept in
the course of a regularly conducted business activity and it was a regular practice of
appellee to create records comprising the documents. Also attached to appellee's motion
is a copy of appellant's responses to appellee's first set of requests for admission. (Ex. B.)
In response to appellee's first set of requests for admission, appellant admitted, inter alia,
to the following: (1) appellant received product "on account" from appellee from May to
September 1, 2014, and (2) appellant has not paid for any products received from appellee
after June 23, 2014. Appellant denied, inter alia, the following: (1) that the statements of
accounts accurately describes deliveries to appellant of product on the dates specified in
the statements of accounts, (2) that appellant owes $25,079.25, and (3) that appellant
failed to pay for product delivered to it by appellee.
{¶ 21} Appellee's exhibit A2 consists of 11 documents titled "Customer Open
Balance All Transactions." Each document is titled with the name of a different
swimming pool. Each document has the date "10/02/15" in the upper left corner with a
time of day which appears to indicate the date and time the document was printed or
created. Each document is divided into seven columns titled as follows: type, date,
number, memo, due date, open balance, and amount. In the type column, each entry
states "invoice." In the date column, each entry lists a date between May 2014 and
September 1, 2014. Some of the entries suggest that multiple deliveries were made on the
same day. In the number column, each entry states a ten-digit number. There is no
explanation on the document regarding what these ten-digit numbers represent. The
memo column is entirely blank. In the due date column, each entry lists a date which
corresponds to the same date in the date column. In the open balance column, each entry
lists a dollar amount. In the amount column, each entry lists a dollar amount which is
equal to the dollar amount in the open balance column. The open balance column does
not begin with zero. Neither column has a running balance nor summarization of all the
entries in the amount column. However, the final entry in both the open balance column
No. 17AP-337 9
and the amount column, designated "total," is the total amount that the particular
swimming pool allegedly owes.
{¶ 22} Appellee's exhibit A3 consists of 11 invoices. Each invoice states "Bill to
Cardinal Concessions Attn. Scott Nail" and lists the name of a different swimming pool.
Each statement is dated "9/30/2016" and states "due on receipt," and each document
indicates that the invoice is "over 90 days past due." Each invoice has four columns titled
as follows: date, description, amount, and balance. The date column on each invoice
contains one date: "8/31/2016." The description column on each invoice contains the
statement "balance forward." The amount column on each statement is entirely blank.
The balance column on each statement contains one amount which is equal to the
"amount due" at the bottom of the column. The amount listed under amount due for each
individual pool is equal to the total amount listed for the same pool on the statements
contained in appellee's exhibit A2. These amounts totaled equal $25,079.25.
{¶ 23} We find appellant has established a prima facie case for money owed on an
account. Appellant is correct that the statements of accounts and the invoices lack a
description of the product delivered and accepted. The ten-digit numbers on the
statements of accounts are not explained thereon and do not correspond to any numbers
on the invoices included in exhibit A3. However, the Burris affidavit indicates the
statements of accounts is for "pizzas and other products provided by Johncol to Cardinal
from May of 2014 and continuing thereafter until September 1, 2014, for which Cardinal
has not paid." (Burris Aff. at ¶ 8.) Furthermore, although the statements of accounts do
not begin with zero or contain a summarization or running balance, the arrangement of
the entries and the itemization permits the calculation of the total amount claimed to be
due. The total amount claimed to be due is the same as that averred by Burris, stated on
the statements of accounts and in the invoices. Appellant has met its initial burden on
summary judgment.
{¶ 24} Appellant argues that if this court decides that appellee did meet its burden,
then the trial court erred when it determined that appellant did not meet its reciprocal
burden to defeat summary judgment and that Nail's affidavit, as well as the unsigned and
unverified receipts presented by appellant, did not suffice. Appellant then argues again
that appellee did not establish its burden because it presented no evidence that delivery
actually happened and suggests several different ways appellee could have presented
No. 17AP-337 10
evidence of delivery. (See appellant's brief at 11: "Appellee could have presented
testimony of delivery drivers who delivered the alleged orders, could have supplied the
names of the drivers who delivered the orders, or provided the names of the individual
who accepted the order on behalf of Appellant.") Appellant also argues the e-mail
correspondence between the parties does not establish that appellant agreed on the
amount of payment due.
{¶ 25} Appellant attached to the memorandum contra the affidavit of Scott Nail
(Defendant's Ex. B) in which Nail averred the arguments outlined in the memorandum
contra and the legal conclusion that the statements of accounts is "not a proper statement
of account." (Nail Aff. at ¶ 6.) Nail generally averred that appellant "disputes the
accuracy and validity of the transactions and invoices attached to [Appellee's] Motion for
Summary Judgment." (Nail Aff. at ¶ 8.) Nail did not specifically dispute any of the
transactions and, as noted above, he did not include any of the allegedly deficient receipts.
{¶ 26} In addition to these attachments, appellant attached copies of the complaint
(Def.'s Ex. A) copies of the statements of accounts already submitted by appellee (Def.'s
Ex. C), the invoices already submitted by appellee (Def.'s Ex. D) as well as a copy of
appellee's second set of requests for admission partially completed by appellant (Def.'s Ex.
E).
{¶ 27} We disagree with appellant that it met the reciprocal burden to defeat
summary judgment. Nail's affidavit is not sufficient to establish a genuine issue of
material fact. It contains general denials and conclusions of law but no specific or
particular denial of the facts established by appellee. Furthermore, although appellant
refers numerous times to the receipts provided in discovery, it did not present the same as
part of its memorandum contra appellee's motion for summary judgment. Therefore,
pursuant to Civ.R. 56(E), summary judgment shall be accorded to appellee.
{¶ 28} Accordingly, we overrule appellant's first assignment of error.
B. Second Assignment of Error - Prejudgment Interest
{¶ 29} In its second assignment of error, appellant argues that should this court
determine summary judgment is appropriate, prejudgment interest should not begin to
accrue on September 1, 2014. Appellant states: "Due is defined as 'owed or owing as a
debt … having reached the date at which payment is required." Appellant further states
"payable is defined as, 'requiring to be paid … specifying payment amount to a particular
No. 17AP-337 11
payee, at a specified time or occasion, or in a particular manner.' " (Appellant's Obj. to
Prejudgment Interest at 2, citing RPM, Inc. v. Oatey Co., 9th Dist. No. 3282, 2005-Ohio-
1280, ¶ 68.)
{¶ 30} Appellant argues the interest should only be applied from the date on which
the debt was due to be paid, not the date the debt was initially incurred. Appellant points
out the invoices in appellee's exhibit A3 are dated August 31, 2016 and state debt is
"payable upon receipt." Appellant argues it would defeat the purpose of making
purchases on account if the amount owed was due on the date it was incurred. Appellant
also argues that while the statements of accounts entries in appellee's exhibit A2 indicate
the due date for each alleged transaction was the same day the transaction allegedly
occurred, there is absolutely no evidence these account statements were sent to appellant
at any point prior to commencement of litigation.
{¶ 31} In response, appellee argues it used September 1, 2014 as the start date for
all prejudgment interest because it is the last date on which appellee provided appellant
with pizza and, thus, the last possible date on which interest could have begun to accrue.
In so doing, appellee suggests it has, thus, alleviated the need to calculate interest on
hundreds of debts with start dates throughout summer 2014.
{¶ 32} The Supreme Court of Ohio has explained prejudgment interest "acts as
compensation and serves ultimately to make the aggrieved party whole." Royal Elec.
Constr. Corp. v. Ohio State Univ., 73 Ohio St.3d 110, 117 (1995). R.C. 1343.03(A)
provides, in part:
In cases other than those provided for in sections 1343.01
and 1343.02 of the Revised Code, when money becomes due
and payable upon any bond, bill, note, or other instrument of
writing, * * * the creditor is entitled to interest at the rate per
annum determined pursuant to section 5703.47 of the
Revised Code, unless a written contract provides a different
rate of interest in relation to the money that becomes due
and payable, in which case the creditor is entitled to interest
at the rate provided in that contract.
{¶ 33} Prejudgment interest compensates a plaintiff for the period of time between
accrual of the claim and judgment, regardless of whether the judgment is based on a
liquidated or unliquidated claim and even if the sum due was not capable of
ascertainment until determined by the court. Royal Elec. at syllabus. Once a plaintiff
No. 17AP-337 12
receives judgment on a contract claim, the trial court has no discretion but to award
prejudgment interest under R.C. 1343.03(A). First Bank of Marietta v. L.C. Ltd., 10th
Dist. No. 99AP-304 (Dec. 28, 1999).
{¶ 34} The only issue for resolution by a trial court with respect to prejudgment
interest under R.C. 1343.03(A) is how much interest is due. Zunshine v. Cott, 10th Dist.
No. 06AP-868, 2007-Ohio-1475, ¶ 26, citing Dwyer Elec., Inc. v. Confederated Builders,
Inc., 3rd Dist. No. 3-98-18 (Oct. 29, 1998). The trial court must make factual
determinations as to when interest commences to run, based on when the claim became
due and payable, and as to what legal rate of interest applies. Id. Thus, although the right
to prejudgment interest on a contract claim is a matter of law, pursuant to R.C.
1343.03(A), the amount awarded is based on the trial court's factual determinations of the
accrual date of the plaintiff's claim and the applicable interest rate. First Bank of
Marietta, citing Royal Elec. at 115. Courts of Appeals review such factual determinations
under an abuse of discretion standard. Dwyer Elec.; Miller v. Lindsay-Green, Inc., 10th
Dist. No. 04AP-848, 2005-Ohio-6366, ¶ 107. Abuse of discretion implies that the court's
attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
{¶ 35} " '[W]here money becomes due under a contract, interest accrues from the
time that the money due should have been paid.' " (Emphasis sic.) Bell v. Teasley, 10th
Dist. No. 10AP-850, 2011-Ohio-2744, ¶ 27, quoting Gates v. Praul, 10th Dist. No. 10AP-
784, 2011-Ohio-6230, ¶ 2, citing Braverman v. Spriggs, 68 Ohio App.2d 58 (10th
Dist.1980). However, the Supreme Court has "specifically and clearly declined to
establish a bright-line rule regarding the accrual date of prejudgment interest but rather
left such a determination to the trial courts on a case-by-case basis." Miller v. Gunckle, 96
Ohio St.3d 359, 2002-Ohio-4932, fn. 4, citing Landis v. Grange Mut. Ins. Co., 82 Ohio
St.3d 339 (1998). See also Parrish v. Coles, 10th Dist. No. 06AP-696, 2007-Ohio-3229,
¶ 69.
{¶ 36} In its judgment entry, the trial court stated it had reviewed appellant's
objections to appellee's request for prejudgment interest and appellee's memorandum
contra. The court then concluded, without making any specific findings, that "[u]pon
review of these filings, the Court finds that [appellant's] objections are not well-taken, and
are hereby DENIED." (Emphasis sic.) (Jgmt. Entry at 1.) The court entered judgment in
No. 17AP-337 13
favor of appellee "plus pre-judgment interest at the rate allowed by law calculated
beginning on September 1, 2014, which represents the latest due date on the invoice
statements attached as Exhibit A to [appellee's] Complaint filed in this action." (Jgmt.
Entry at 1.)
{¶ 37} The trial court did not provide an explanation as to how it arrived at the
September 1, 2014 accrual date, nor make factual determinations regarding when the
money for pizzas should have been paid. Without the benefit of any specific factual
determinations set forth in the trial court's decision, we are unable to find that an award
of prejudgment interest utilizing a September 1, 2014 accrual date is supported by the
record. As a result, we find the trial court abused its discretion.
{¶ 38} Accordingly, we sustain appellant's second assignment of error. Although
we find an award of prejudgment interest to be proper, on remand, the trial court must
factually determine when the money was due and payable and, thus, when the
prejudgment interest should begin to run.
IV. Conclusion
{¶ 39} For the foregoing reasons, we overrule appellant's first assignment of error
and sustain its second assignment of error. We affirm in part and reverse in part the
judgment of the Franklin County Court of Common Pleas and remand this matter to that
court for further proceedings relating only to the issue of prejudgment interest, consistent
with law and this decision.
Judgment affirmed in part,
reversed in part,
and cause remanded with instructions.
TYACK, P.J., and HORTON, J., concur.