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CV-2019-01-0254 BAKER ROSS, SUSAN 06/17/2019 17:54:38 PM MOPP Page 1 of 8
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
NORDONIA LANDSCAPE SUPPLIERS, LLC ) CASE NO. CV 2019-01-0254
)
Plaintiff, )
) JUDGE BAKER ROSS
vs. )
) BRIEF IN OPPOSITION TO
CITY OF AKRON, OHIO ) DEFENDANT’S MOTION FOR
) JUDGMENT ON THE PLEADINGS
Defendant. )
I. INTRODUCTION
On January 21, 2019, Plaintiff Nordonia Landscape Suppliers, LLC (“NLS”) filed a
Complaint against Defendant City of Akron (the “City”) seeking damages for breach of contract
and promissory estoppel. On May 22, 2019, Defendant filed a motion to for judgment on the
pleadings arguing Plaintiff failed to state a claim for which relief can be granted.
Contemporaneously with this brief in opposition, Plaintiff filed a dismissal of its breach of
contract claim. Plaintiff opposes Defendant’s motion for judgment on the pleadings for its
remaining promissory estoppel claim on the following grounds:
II. FACTS
With reference to the Complaint, Plaintiffs summarize the facts as follows:
NLS is an Ohio limited liability company owned and operated by Christopher D.Posey
(“Posey”) that sells road salt to municipal governments and commercially in Ohio. In August
2018, NLS purchased 24,000 tons of road salt from Siwa Egypt and took delivery of it in
September 2018. Prior to arrival, NLS sold 14,000 tons of road salt to multiple cities and
commercially in Northeast Ohio. NLS had 10,000 tons remaining at the end of September. In late
September 2018, Kim Herron (“Herron”), the City’s purchasing agent, called Posey asking about
purchasing 25,000 tons of salt from NLS. Posey told Herron he had 10,000 tons he could hold
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for the City. He stated he would need to bring in a second vessel from Egypt for the remaining
15,000.
On September 28, 2018, Herron sent Posey a request for quotation for 25,000 tons of
road salt to cover the City from October 15, 2018 to April 30, 2019 with an October 10, 2018
due date. On October 1, 2018, Posey sent two quotes to Herron via email: one for the10,000
currently on hold and one for the 15,000 to be sent by a second vessel. The quotes provided the
City an option to have NLS deliver the road salt to their facilities at a price per ton. On October
2, 2018, Posey asked Herron if the City would commit to purchasing salt from him, otherwise he
would have to release the 10,000 tons of road salt to other cities and townships. Herron did not
respond to this email immediately.
On October 4, 2018 at 6:55 AM, Posey told Herron due to her lack of response he
decided to release the 10,000 tons of road salt to be sold. At 6:56 AM, Herron responded by
asking Posey to hold off until she spoke to the City’s Public Works manager Jim Hall at 10:00
AM. Posey agreed to wait until noon. At 11:51 PM, Herron emailed Posey saying, “we will take
it.” Posey then told her to sign the quotes and send them back to him. NLS attorney James Pearl
(“Attorney Pearl”) sent Herron NLS’s W-9 and an escrow agreement for payment. At 4:04 PM,
Posey emailed Herron to see if she got the W-9 and escrow agreement and asked for a timeline
on when to expect payment for the first 10,000 tons of road salt and the second, so he could
coordinate a second vessel to deliver the remainder of salt from Egypt. At 4:05 PM, Herron
asked Posey why the two quotes had different prices. Posey called Herron and explained that the
second quote for 15,000 tons had a higher price than the first due to the high demand for salt and
commiserate increase in prices.
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On October 5, 2018 at 8:04 AM, Herron sent Posey an email with an attached signed and
dated quote for the first 10,000 tons of road salt. In the email she stated:
Please see the attached quote signed and dated. Per our conversation, We will be meeting
with Council on October 15th. We will then be meeting with Board of Control on
Monday, October 22nd. We will then be able to process a check within the next couple of
weeks. If you have any questions, please feel free to contact me.
Between October 5, 2018 and October 31, 2018, Posey called and emailed Herron multiple times
to check on payment. She did not pick up the phone, call back, or respond to emails.
In the meantime, NLS purchased a 2019 Kenworth T880 dump truck for $189,160 using an auto
loan and a 2019 Peterbilt 567 dump truck for $218,414.88 using an installment contract in
preparation for making deliveries for the contract.
On October 31, 2018, Posey finally talked to Herron who told him the City no longer
wanted the salt. Posey asked for Herron to put that statement in writing so he could sell the salt
elsewhere, but she refused. At 10:42 AM, Posey emailed Herron and Jim Hall asking for a
written confirmation that the City was cancelling their contract with NLS. Neither responded.
NLS made multiple efforts through counsel to get written confirmation that the contract was
either cancelled or void, so NLS could sell the remaining road salt. After failing to get the City to
settle the matter or clearly state in writing that the contract was cancelled or void, NLS sold the
10,000 tons of road salt in mid-December. It received a price $20.00 less per ton than the City
had agreed to due to a lower demand for road salt from unseasonably warm weather in
December. The purchaser was able to transport the road salt, so the dump trucks NLS purchased
were idled.
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III. STANDARD OF REVIEW
“A motion for a judgment on the pleadings, pursuant to Civ. R. 12(C), presents only
questions of law. The determination of a motion under Civ. R. 12(C) is restricted solely to the
allegations in the pleadings and the nonmoving party is entitled to have all material allegations in
the complaint, with all reasonable inferences to be drawn therefrom, construed in its favor.” State
by & through Wray v. Karl R. Rohrer Assoc., Inc., 5th Dist. Tuscarawas No. 2017AP030008,
2018-Ohio-65, ¶ 12.
IV. LAW AND ARGUMENT
If the material allegations in the Complaint are construed in the Plaintiff’s favor, then the
City is liable to NLS matter of law under the equitable doctrine of promissory estoppel.
Defendant argues in its motion for judgment on the pleadings the Ohio Supreme Court's decision
in Hortman v. Miamisburg prohibits claims for promissory estoppel against a political
subdivision for the performance of governmental functions; the procurement of road salt is a
government function; therefore, NLS’s claim for promissory estoppel is barred. Defendant’s
argument fails, because the procurement of road salt is not a governmental function.
A. Complaint Alleges Sufficient Facts to Prove Promissory Estoppel
Promissory estoppel sounds in contract. Hortman v. Miamisburg, 110 Ohio St.3d 194,
2006-Ohio-4251, 852 N.E.2d 716, ¶ 27 (2006) (Pfeifer, J., dissenting). Ohio “adopted
promissory estoppel through the Restatement of the Law 2d, Contracts (1973), Section 90 in
Talley v. Teamsters, Chauffeurs, Warehousemen, & Helpers, Local No. 377 (1976), 48 Ohio
St.2d 142, 146, 2 O.O.3d 297, 357 N.E.2d 44.” Olympic Holding Co. v. ACE Ltd., 122 Ohio
St.3d 89, 2009-Ohio-2057, 909 N.E.2d 93, ¶¶ 39-40 (2009). “Promissory estoppel is an adequate
remedy for a fraudulent oral promise or breach of an oral promise, absent a signed agreement.”
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See Karnes v. Doctors Hosp. (1990), 51 Ohio St.3d 139, 142, 555 N.E.2d 280 (promissory
estoppel is an “equitable doctrine designed to prevent the harm resulting from the reasonable and
detrimental reliance of [the promisee] upon the false representations of [the promisor]”
[emphasis added]).).
The Complaint alleged sufficient facts to prove NLS reasonably relied on the City’s
authorized purchasing agent’s promises and representations that it had accepted NLS’s quote.
The City failed to inform NLS from October 4, 2018 to October 31, 2018 that it did not accept
NLS’s quote and did not intend to pay for the salt despite repeated opportunities. In that time
period, Posey relied on the City’s representations and purchased two dump trucks to service the
contract. After October 31, 2018, the City orally informed Posey that it no longer wanted the
road salt but refused to provide him written confirmation the contract was void. Posey feared the
City would sue him for breach of contract if he did not provide the requested road salt. After
repeated attempts to get explicit authorization to sell the road salt from the City, NLS sold it at a
much lower price than it could have gotten in September, October, or November.
B. Procurement of Road Salt is not a Governmental Function
R.C. 2744.01(C)(2) provides a list of governmental functions, which identifies as a
government function “[t]he regulation of the use of, and the maintenance and repair of, roads,
highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public grounds.”
R.C. 2744.01(C)(2)(e). Road salt is not a product used for the maintenance or repair of roads, in
fact, road salt frequently damages roads and creates the conditions necessary for maintenance or
repair of roads. Courts have interpreted R.C. 2744.01(C)(2)(e) narrowly to cover only repair and
maintenance projects. In Sullivan v. Anderson Tp., a court narrowly held a township's road and
sidewalk maintenance and repair project was a governmental function, while in Kenko Corp. v.
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Cincinnati, a court held road construction is not a governmental function because private
residential developers customarily engage in it. Kenko Corp. v. Cincinnati, 2009-Ohio-4189, ¶
32, 183 Ohio App. 3d 583, 589, 917 N.E.2d 888, 893. Thus, a government action associated
with a road does not make it automatically a governmental function.
In the absence of an explicit statutory definition, whether a function is governmental or
proprietary must be determined by “defining what it is that the political subdivision is actually
doing when performing the function.” Id at ¶ 27. “When deciding whether a political subdivision
is engaged in a governmental or proprietary function pursuant to R.C. 2744.01(G)(1)(b), a court
should look to the particular activity the subdivision is engaged in and decide whether that
particular activity is of the type customarily engaged in by nongovernmental persons.” Allied
Erecting & Dismantling Co. v. Youngstown, 2002-Ohio-5179, ¶ 52, 151 Ohio App. 3d 16, 29,
783 N.E.2d 523, 533. In Allied, the court held that when a city was “threatening to press criminal
charges against [plaintiff], [it] was [not] acting any differently than any other property owner
threatening an alleged trespasser with criminal charges,” so it was engaged in a proprietary
function. Allied Erecting & Dismantling Co., at ¶ 53. Road salt is a common product used on
roads, sidewalks, driveways, parking lots, and other paved surfaces during wintertime in equal
measure by government and non-government property owners melt ice. The City was not acting
any different than any other property owner when it attempted to purchase road salt from NLS in
preparation for the winter; therefore, it was engaging in a proprietary function, not a
governmental function.
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V. CONCLUSION
If all material allegations in the complaint are construed in the Plaintiff’s favor, then as a
matter of law NLS reasonably relied on the City’s false promises and representations to its
detriment for which the City is liable to NLS under the equitable doctrine of promissory
estoppel. NLS may bring a promissory estoppel claim against the City despite it being a political
subdivision, because the procurement of road salt is proprietary function not a governmental
function. For the reasons stated above, Plaintiff requests the Court deny Defendant’s motion for
judgment on the pleadings and allow it to proceed to discovery.
Respectfully Submitted,
/s/Logan Trombley
Logan Trombely (0096858)
Warner D. Mendenhall (0070165)
190 North Union St., Suite 201
Akron, OH 44304
330.535.9160
fax330.762.9743
warner@warnermendenhall.com
logan@ warnermendenhall.com
Attorney for Plaintiff
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CERTIFICATE OF SERVICE
I hereby certify that on June 17, 2019, the foregoing was filed via the Summit County Clerk
of Court’s eFile system, which shall send notifications of this filing to the following:
David Honig
Brian D. Bremer
Assistant Directors of Law
161 S. High St., Suite 202
Akron, Ohio 44308
(330) 375-2030: (330) 375-2041 (fax)
dhonig@akronohio.gov
bbremer@akronohio.gov
/s/Logan Trombley
Logan Trombely (0096858)
8
Sandra Kurt, Summit County Clerk of Courts
Preview
CV-2019-01-0254 BAKER ROSS, SUSAN 06/17/2019 17:54:38 PM MOPP Page 1 of 8 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO NORDONIA LANDSCAPE SUPPLIERS, LLC ) CASE NO. CV 2019-01-0254 ) Plaintiff, ) ) JUDGE BAKER ROSS vs. ) ) BRIEF IN OPPOSITION TO CITY OF AKRON, OHIO ) DEFENDANT’S MOTION FOR ) JUDGMENT ON THE PLEADINGS Defendant. ) I. INTRODUCTION On January 21, 2019, Plaintiff Nordonia Landscape Suppliers, LLC (“NLS”) filed a Complaint against Defendant City of Akron (the “City”) seeking damages for breach of contract and promissory estoppel. On May 22, 2019, Defendant filed a motion to for judgment on the pleadings arguing Plaintiff failed to state a claim for which relief can be granted. Contemporaneously with this brief in opposition, Plaintiff filed a dismissal of its breach of contract claim. Plaintiff opposes Defendant’s motion for judgment on the pleadings for its remaining promissory estoppel claim on the following grounds: II. FACTS With reference to the Complaint, Plaintiffs summarize the facts as follows: NLS is an Ohio limited liability company owned and operated by Christopher D.Posey (“Posey”) that sells road salt to municipal governments and commercially in Ohio. In August 2018, NLS purchased 24,000 tons of road salt from Siwa Egypt and took delivery of it in September 2018. Prior to arrival, NLS sold 14,000 tons of road salt to multiple cities and commercially in Northeast Ohio. NLS had 10,000 tons remaining at the end of September. In late September 2018, Kim Herron (“Herron”), the City’s purchasing agent, called Posey asking about purchasing 25,000 tons of salt from NLS. Posey told Herron he had 10,000 tons he could hold 1 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 BAKER ROSS, SUSAN 06/17/2019 17:54:38 PM MOPP Page 2 of 8 for the City. He stated he would need to bring in a second vessel from Egypt for the remaining 15,000. On September 28, 2018, Herron sent Posey a request for quotation for 25,000 tons of road salt to cover the City from October 15, 2018 to April 30, 2019 with an October 10, 2018 due date. On October 1, 2018, Posey sent two quotes to Herron via email: one for the10,000 currently on hold and one for the 15,000 to be sent by a second vessel. The quotes provided the City an option to have NLS deliver the road salt to their facilities at a price per ton. On October 2, 2018, Posey asked Herron if the City would commit to purchasing salt from him, otherwise he would have to release the 10,000 tons of road salt to other cities and townships. Herron did not respond to this email immediately. On October 4, 2018 at 6:55 AM, Posey told Herron due to her lack of response he decided to release the 10,000 tons of road salt to be sold. At 6:56 AM, Herron responded by asking Posey to hold off until she spoke to the City’s Public Works manager Jim Hall at 10:00 AM. Posey agreed to wait until noon. At 11:51 PM, Herron emailed Posey saying, “we will take it.” Posey then told her to sign the quotes and send them back to him. NLS attorney James Pearl (“Attorney Pearl”) sent Herron NLS’s W-9 and an escrow agreement for payment. At 4:04 PM, Posey emailed Herron to see if she got the W-9 and escrow agreement and asked for a timeline on when to expect payment for the first 10,000 tons of road salt and the second, so he could coordinate a second vessel to deliver the remainder of salt from Egypt. At 4:05 PM, Herron asked Posey why the two quotes had different prices. Posey called Herron and explained that the second quote for 15,000 tons had a higher price than the first due to the high demand for salt and commiserate increase in prices. 2 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 BAKER ROSS, SUSAN 06/17/2019 17:54:38 PM MOPP Page 3 of 8 On October 5, 2018 at 8:04 AM, Herron sent Posey an email with an attached signed and dated quote for the first 10,000 tons of road salt. In the email she stated: Please see the attached quote signed and dated. Per our conversation, We will be meeting with Council on October 15th. We will then be meeting with Board of Control on Monday, October 22nd. We will then be able to process a check within the next couple of weeks. If you have any questions, please feel free to contact me. Between October 5, 2018 and October 31, 2018, Posey called and emailed Herron multiple times to check on payment. She did not pick up the phone, call back, or respond to emails. In the meantime, NLS purchased a 2019 Kenworth T880 dump truck for $189,160 using an auto loan and a 2019 Peterbilt 567 dump truck for $218,414.88 using an installment contract in preparation for making deliveries for the contract. On October 31, 2018, Posey finally talked to Herron who told him the City no longer wanted the salt. Posey asked for Herron to put that statement in writing so he could sell the salt elsewhere, but she refused. At 10:42 AM, Posey emailed Herron and Jim Hall asking for a written confirmation that the City was cancelling their contract with NLS. Neither responded. NLS made multiple efforts through counsel to get written confirmation that the contract was either cancelled or void, so NLS could sell the remaining road salt. After failing to get the City to settle the matter or clearly state in writing that the contract was cancelled or void, NLS sold the 10,000 tons of road salt in mid-December. It received a price $20.00 less per ton than the City had agreed to due to a lower demand for road salt from unseasonably warm weather in December. The purchaser was able to transport the road salt, so the dump trucks NLS purchased were idled. 3 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 BAKER ROSS, SUSAN 06/17/2019 17:54:38 PM MOPP Page 4 of 8 III. STANDARD OF REVIEW “A motion for a judgment on the pleadings, pursuant to Civ. R. 12(C), presents only questions of law. The determination of a motion under Civ. R. 12(C) is restricted solely to the allegations in the pleadings and the nonmoving party is entitled to have all material allegations in the complaint, with all reasonable inferences to be drawn therefrom, construed in its favor.” State by & through Wray v. Karl R. Rohrer Assoc., Inc., 5th Dist. Tuscarawas No. 2017AP030008, 2018-Ohio-65, ¶ 12. IV. LAW AND ARGUMENT If the material allegations in the Complaint are construed in the Plaintiff’s favor, then the City is liable to NLS matter of law under the equitable doctrine of promissory estoppel. Defendant argues in its motion for judgment on the pleadings the Ohio Supreme Court's decision in Hortman v. Miamisburg prohibits claims for promissory estoppel against a political subdivision for the performance of governmental functions; the procurement of road salt is a government function; therefore, NLS’s claim for promissory estoppel is barred. Defendant’s argument fails, because the procurement of road salt is not a governmental function. A. Complaint Alleges Sufficient Facts to Prove Promissory Estoppel Promissory estoppel sounds in contract. Hortman v. Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, 852 N.E.2d 716, ¶ 27 (2006) (Pfeifer, J., dissenting). Ohio “adopted promissory estoppel through the Restatement of the Law 2d, Contracts (1973), Section 90 in Talley v. Teamsters, Chauffeurs, Warehousemen, & Helpers, Local No. 377 (1976), 48 Ohio St.2d 142, 146, 2 O.O.3d 297, 357 N.E.2d 44.” Olympic Holding Co. v. ACE Ltd., 122 Ohio St.3d 89, 2009-Ohio-2057, 909 N.E.2d 93, ¶¶ 39-40 (2009). “Promissory estoppel is an adequate remedy for a fraudulent oral promise or breach of an oral promise, absent a signed agreement.” 4 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 BAKER ROSS, SUSAN 06/17/2019 17:54:38 PM MOPP Page 5 of 8 See Karnes v. Doctors Hosp. (1990), 51 Ohio St.3d 139, 142, 555 N.E.2d 280 (promissory estoppel is an “equitable doctrine designed to prevent the harm resulting from the reasonable and detrimental reliance of [the promisee] upon the false representations of [the promisor]” [emphasis added]).). The Complaint alleged sufficient facts to prove NLS reasonably relied on the City’s authorized purchasing agent’s promises and representations that it had accepted NLS’s quote. The City failed to inform NLS from October 4, 2018 to October 31, 2018 that it did not accept NLS’s quote and did not intend to pay for the salt despite repeated opportunities. In that time period, Posey relied on the City’s representations and purchased two dump trucks to service the contract. After October 31, 2018, the City orally informed Posey that it no longer wanted the road salt but refused to provide him written confirmation the contract was void. Posey feared the City would sue him for breach of contract if he did not provide the requested road salt. After repeated attempts to get explicit authorization to sell the road salt from the City, NLS sold it at a much lower price than it could have gotten in September, October, or November. B. Procurement of Road Salt is not a Governmental Function R.C. 2744.01(C)(2) provides a list of governmental functions, which identifies as a government function “[t]he regulation of the use of, and the maintenance and repair of, roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public grounds.” R.C. 2744.01(C)(2)(e). Road salt is not a product used for the maintenance or repair of roads, in fact, road salt frequently damages roads and creates the conditions necessary for maintenance or repair of roads. Courts have interpreted R.C. 2744.01(C)(2)(e) narrowly to cover only repair and maintenance projects. In Sullivan v. Anderson Tp., a court narrowly held a township's road and sidewalk maintenance and repair project was a governmental function, while in Kenko Corp. v. 5 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 BAKER ROSS, SUSAN 06/17/2019 17:54:38 PM MOPP Page 6 of 8 Cincinnati, a court held road construction is not a governmental function because private residential developers customarily engage in it. Kenko Corp. v. Cincinnati, 2009-Ohio-4189, ¶ 32, 183 Ohio App. 3d 583, 589, 917 N.E.2d 888, 893. Thus, a government action associated with a road does not make it automatically a governmental function. In the absence of an explicit statutory definition, whether a function is governmental or proprietary must be determined by “defining what it is that the political subdivision is actually doing when performing the function.” Id at ¶ 27. “When deciding whether a political subdivision is engaged in a governmental or proprietary function pursuant to R.C. 2744.01(G)(1)(b), a court should look to the particular activity the subdivision is engaged in and decide whether that particular activity is of the type customarily engaged in by nongovernmental persons.” Allied Erecting & Dismantling Co. v. Youngstown, 2002-Ohio-5179, ¶ 52, 151 Ohio App. 3d 16, 29, 783 N.E.2d 523, 533. In Allied, the court held that when a city was “threatening to press criminal charges against [plaintiff], [it] was [not] acting any differently than any other property owner threatening an alleged trespasser with criminal charges,” so it was engaged in a proprietary function. Allied Erecting & Dismantling Co., at ¶ 53. Road salt is a common product used on roads, sidewalks, driveways, parking lots, and other paved surfaces during wintertime in equal measure by government and non-government property owners melt ice. The City was not acting any different than any other property owner when it attempted to purchase road salt from NLS in preparation for the winter; therefore, it was engaging in a proprietary function, not a governmental function. 6 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 BAKER ROSS, SUSAN 06/17/2019 17:54:38 PM MOPP Page 7 of 8 V. CONCLUSION If all material allegations in the complaint are construed in the Plaintiff’s favor, then as a matter of law NLS reasonably relied on the City’s false promises and representations to its detriment for which the City is liable to NLS under the equitable doctrine of promissory estoppel. NLS may bring a promissory estoppel claim against the City despite it being a political subdivision, because the procurement of road salt is proprietary function not a governmental function. For the reasons stated above, Plaintiff requests the Court deny Defendant’s motion for judgment on the pleadings and allow it to proceed to discovery. Respectfully Submitted, /s/Logan Trombley Logan Trombely (0096858) Warner D. Mendenhall (0070165) 190 North Union St., Suite 201 Akron, OH 44304 330.535.9160 fax330.762.9743 warner@warnermendenhall.com logan@ warnermendenhall.com Attorney for Plaintiff 7 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 BAKER ROSS, SUSAN 06/17/2019 17:54:38 PM MOPP Page 8 of 8 CERTIFICATE OF SERVICE I hereby certify that on June 17, 2019, the foregoing was filed via the Summit County Clerk of Court’s eFile system, which shall send notifications of this filing to the following: David Honig Brian D. Bremer Assistant Directors of Law 161 S. High St., Suite 202 Akron, Ohio 44308 (330) 375-2030: (330) 375-2041 (fax) dhonig@akronohio.gov bbremer@akronohio.gov /s/Logan Trombley Logan Trombely (0096858) 8 Sandra Kurt, Summit County Clerk of Courts