Premiere Radio Networks, Inc. v. Sandblast, L.P.

[Cite as Premiere Radio Networks, Inc. v. Sandblast, L.P., 2019-Ohio-4015.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Premiere Radio Networks, Inc., :
Plaintiff-Appellee, :
No. 18AP-736
v. : (C.P.C. No. 17CV-9977)
Sandblast, L.P., : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 30, 2019
On brief: Mason, Schilling & Mason Co., LPA, Richard D.
Schilling, Rachel J. Mason, J. Blake Thomas, and Joseph M.
Ruwe, for appellee.
On brief: Percy Squire Co., LLC, and Percy Squire, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Sandblast, L.P., appeals from a judgment of the
Franklin County Court of Common Pleas granting summary judgment in favor of plaintiff-
appellee, Premiere Radio Networks, Inc. ("Premiere"), on Premiere's claims for breach of
contract or unjust enrichment. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} In December 2014, Premiere entered into a license agreement with Sandblast
granting Sandblast the exclusive right to broadcast the Steve Harvey Morning Show radio
program within the Columbus, Ohio metropolitan radio market (the "License Agreement").
The License Agreement commenced on January 1, 2015 and terminated on December 31,
2017. The License Agreement provided that Sandblast would pay certain license fees and
No. 18AP-736 2
bonuses as set forth in an attached schedule. On November 7, 2017, Premiere filed a
complaint in the common pleas court, asserting Sandblast had breached the License
Agreement and that Premiere was entitled to a judgment of $96,492, plus interest, fees,
and costs. The complaint also asserted an alternative claim for unjust enrichment.
{¶ 3} Sandblast moved to dismiss the complaint for failure to state a claim upon
which relief could be granted, arguing it was not a party to the License Agreement and that
there was no written agreement between Sandblast and Premiere. The trial court denied
Sandblast's motion to dismiss, noting the License Agreement explicitly provided it was
between Premiere and Sandblast.
{¶ 4} Premiere moved for summary judgment, asserting there were no genuine
issues of material fact and it was entitled to judgment as a matter of law because Sandblast
breached the License Agreement and failed to present any defense beyond a general denial
of Premiere's claims. Premiere further argued that Sandblast had been unjustly enriched
by receiving the radio programming under the License Agreement and not having paid the
license fees as provided in the agreement. Sandblast filed a memorandum in opposition,
arguing there was no agreement between Premiere and Sandblast, but that the License
Agreement was between Premiere and two radio subchannels that Sandblast previously
leased from another company. Sandblast further argued there was a genuine issue of
material fact as to whether the parties had entered into an accord and satisfaction
transferring the radio programming to another station. The trial court granted summary
judgment in favor of Premiere, finding there was no genuine issue of material fact and
Premiere was entitled to judgment as a matter of law in the amount of $96,492, plus
interest and costs.
II. Assignment of Error
{¶ 5} Sandblast appeals and assigns the following sole assignment of error for our
review:
The Trial Court erred when it granted summary judgment to
Plaintiff because due to the provisions of 47 CFR §74.1231(b)
Sandblast, L.P. could not lawfully be party to the relevant
programming agreement with Premiere.
No. 18AP-736 3
III. Analysis
{¶ 6} We review a grant of summary judgment under a de novo standard. Capella
III, LLC v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.), citing Andersen
v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). "[D]e novo appellate review means
that the court of appeals independently reviews the record and affords no deference to the
trial court's decision." (Internal quotations and citations omitted.) Holt v. State, 10th Dist.
No. 10AP-214, 2010-Ohio-6529, ¶ 9. Summary judgment is appropriate where "the moving
party demonstrates that: (1) there is no genuine issue of material fact, (2) the moving party
is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made." Capella III at ¶ 16, citing Gilbert v. Summit Cty., 104 Ohio
St.3d 660, 2004-Ohio-7108, ¶ 6. In ruling on a motion for summary judgment, the court
must resolve all doubts and construe the evidence in favor of the non-moving party. Pilz v.
Ohio Dept. of Rehab. & Corr., 10th Dist. No. 04AP-240, 2004-Ohio-4040, ¶ 8.
{¶ 7} Sandblast's primary argument on appeal is that the trial court erred by
granting summary judgment in favor of Premiere because Sandblast was prohibited by
federal law from being a party to the License Agreement. Sandblast argues the radio station
it owns is an FM translator and that under 47 C.F.R. 74.1231(b) it could not originate
programming or transmit an FM radio signal as provided under the License Agreement.
However, Sandblast did not raise this argument before the trial court and asserts it for the
first time on appeal. Issues raised for the first time on appeal are deemed to have been
waived or forfeited through failure to assert them before the trial court. See J&H
Reinforcing & Structural Erectors, Inc. v. Ohio School Facilities Comm., 10th Dist. No.
13AP-732, 2014-Ohio-1963, ¶ 19 ("Issues that could have been raised and resolved in the
trial court cannot be raised for the first time on appeal. Thus, issues not raised in the trial
court are forfeited on appeal."); Bell v. Teasley, 10th Dist. No. 10AP-850, 2011-Ohio-2744,
¶ 15 ("Parties cannot raise any new issues for the first time on appeal, and the failure to
raise an issue at the trial level waives it on appeal."). "[W]hile this court's standard on
review on a motion for summary judgment is de novo, that standard 'does not supersede
[an appellate court's] settled practice of not addressing issues raised for the first time on
appeal.' " Tucker v. Leadership Academy for Math & Science of Columbus, 10th Dist. No.
No. 18AP-736 4
14AP-100, 2014-Ohio-3307, ¶ 20. Accordingly, we decline to consider Sandblast's federal
law argument.
{¶ 8} Sandblast further argues there was no written agreement between Premiere
and Sandblast, claiming the License Agreement was between Premiere and two radio
stations, WTOH-HD4 and WTOH-X1. Sandblast asserts that in the absence of a written
agreement, the statute of frauds would prevent a breach of contract claim because the
license period extended two years, from January 1, 2015 through December 31, 2017.
{¶ 9} The first paragraph of the License Agreement, which was attached to
Premiere's complaint, provided as follows:
This Radio Program License Agreement ("Agreement") is by
and between Premiere Radio Networks, Inc., a Delaware
corporation located at 125 W 55th St., 21st Floor, New York, NY
10019; ("Distributor" or "Premiere") and Sandblast Limited
Partnership, ("Licensee"), licensee of station, WTOH-HD4
(98.9) and simulcast on WTOH-X1 (W294AH), 95.9,
("Station"), located at 341 S. 3rd Street, Suite 10 Columbus OH
43215, as of January 01, 2015.
(The Steve Harvey Morning Show Radio Program License Agreement at 1, attached as Ex.
to Compl.) Thus, Sandblast is expressly named as a party to the License Agreement. The
License Agreement further stated that Premiere granted Sandblast, as the licensee, the
exclusive right to broadcast certain radio programming in the Columbus radio market and
that in consideration of that license, Sandblast would pay license fees as set forth in the
agreement.
{¶ 10} "In order to establish a claim for breach of contract, the plaintiff must show
the existence of a contract, performance by the plaintiff under the terms of that contract,
breach by the defendant, and damage or loss to the plaintiff." CosmetiCredit, LLC v. World
Fin. Network Natl. Bank, 10th Dist. No. 14AP-32, 2014-Ohio-5301, ¶ 13. The License
Agreement establishes there was a contract between Premiere and Sandblast. In its motion
for summary judgment, Premiere asserted Sandblast was provided with the radio
programming under the License Agreement but failed to make the license fee payments as
set forth in that agreement. Premiere supported its motion for summary judgment with an
affidavit from a senior collections manager and copies of business records showing the
amounts due on Sandblast's account. Premiere also supported its motion for summary
No. 18AP-736 5
judgment with a copy of Sandblast's response to Premiere's requests for admission, in
which Sandblast admitted that Percy Squire had authority on behalf of Sandblast to execute
the License Agreement. Based on our review of these materials, we conclude that Premiere
demonstrated there is no genuine issue of material fact regarding the existence of an
agreement between Premiere and Sandblast, breach of that agreement by Sandblast, and
damage to Premiere as a result of that breach; accordingly, Premiere was entitled to
judgment as a matter of law, and the trial court did not err by granting summary judgment
in favor of Premiere.
{¶ 11} Therefore, we overrule Sandblast's sole assignment of error.
IV. Conclusion
{¶ 12} For the foregoing reasons, we overrule Sandblast's sole assignment of error
and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT, P.J., and BRUNNER, J., concur.