Party Statement: NORDONIA LANDSCAPE SUPPLIES, LLC VS CITY OF AKRON

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                                CV-2019-01-0254             BAKER ROSS, SUSAN          06/06/2019 09:24:45 AM                DPRE                          Page 1 of 4




                                                    IN THE COURT OF COMMON PLEAS
                                                            SUMMIT COUNTY, OHIO

                  NORDONIA LANDSCAPE                                    )        CASE NO.:       CV 2019-01-0254
                  SUPPLIERS, LLC                                        )
                                                                        )        JUDGE SUSAN BAKER ROSS
                                    Plaintiff,                          )
                           vs.                                          )
                                                                        )
                  CITY OF AKRON, OHIO                                   )        DEFENDANT’S
                                                                        )        PRETRIAL STATEMENT
                                    Defendant.                          )


                           Now    comes     the  Defendant,    City   of  Akron,    Ohio    (“Akron”    or  “Defendant”)      by   and

                  through    its undersigned     counsel,    and   hereby    submits   its  Pretrial  Statement     for  this  court’s

                  consideration at the pretrial set for June 7, 2019, at 9:30 a.m.

                  I. STATEMENT OF FACTS

                           Plaintiff, Nordonia Landscape Suppliers, LLC (“Plaintiff”), filed this action for breach of

                  contract and promissory estoppel.         In both counts, Plaintiff essentially alleges that it entered into

                  an  agreement     with   Akron    to purchase    road   salt  and  that  Akron    breached    that  agreement     by

                  failing  to  purchase   the  road   salt.  Akron    filed  an  Answer    and   a  Motion    for Judgment     on  the

                  Pleadings, which is still pending.

                           Akron    issued  a  request   for quotation    related  to  the  purchase   of  road   salt (the  “RFQ”).

                  The   RFQ    requires   all  pricing  to  be  submitted     as a  “unit  price   per  delivered    ton.”   Plaintiff

                  submitted an estimate in response to the RFQ.             Plaintiff’s estimate contained some contradictory

                  language    and  two   Akron   representatives     called  Plaintiff  to discuss   the estimate   and   clarify  and

                  confirm the Parties understanding.          During that call, Plaintiff reiterated that the estimate of $92

                  per ton for the 10,000 tons of salt included delivery of the salt.            After the call, one of the Akron

                  representatives on the call, Kim Herron, sent a confirming email to the Plaintiff representative on




                                       Sandra Kurt, Summit County Clerk of Courts
     CV-2019-01-0254             BAKER ROSS, SUSAN          06/06/2019 09:24:45 AM                DPRE                          Page 2 of 4




                  the  call,  Christopher    Posey.     Thereafter,    Plaintiff  submitted    an   invoice   to  Akron    which    far

                  exceeded the agreed upon price and which was also in excess of the standing amount per ton that

                  Akron could purchase salt from a different salt supplier.

                           Akron    and  Plaintiff  never   entered  into  a  contract  for  the purchase    of  salt.  Akron   never

                  issued a purchase order for the purchase of the salt.            Akron never submitted Plaintiff’s estimate

                  to Akron’s    Board    of Control    because   Plaintiff  changed    the  agreed   upon   terms   after  the  phone

                  call.  The Parties did not comply with Akron’s charter requirements for entering into a contract

                  in  that  it was   never   approved     by  the  Board    of  Control,    was   not  approved     as  to form    and

                  correctness    by  Akron’s     Director   of  Law,    and  was   the   funds   were   not  certified   by  Akron’s

                  Director of Finance.

                  II. ISSUES OF FACT

                                   What was the purchase price of the salt discussed in the relevant phone call?

                  III. ISSUES OF LAW

                                   Were Akron’s charter requirements met?

                                   Was there a promise that was reasonably relied on?

                                   Did   Plaintiff’s  representative    make    a false  statement    to Akron    in an   attempt   to

                                    induce Akron to enter into a contract with Plaintiff?

                  IV.      DAMAGES

                           Akron    is not  alleging  any   damages    in  this matter.   Akron    does   not believe   Plaintiff  has

                  damages either.

                  V.       MEDICAL EXAMINATION.

                           There is no need for medical examinations in this case.



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                                       Sandra Kurt, Summit County Clerk of Courts
     CV-2019-01-0254             BAKER ROSS, SUSAN          06/06/2019 09:24:45 AM                DPRE                          Page 3 of 4




                  VI.      DEPOSITIONS

                           Discovery has not yet commenced, however, if the Motion for Judgment on the Pleadings

                  is denied   and   the case   proceeds,   Akron    would    likely  take  Christopher    Posey’s   deposition,    and

                  perhaps additional ones.

                  VII.     EXPERT WITNESSES

                           There is likely no need for expert witnesses in this case; however discovery might yield a

                  different conclusion.

                  VIII.    LAY WITNESSES

                           Akron would likely call Jim Hall and Kim Herron as witnesses.                 As discovery progresses,

                  Akron may add additional lay witnesses.


                                                                                    Respectfully submitted,

                                                                                    Eve V.    Belfance Director     of  Law

                                                                                    /s/ David Honig
                                                                                    David Honig – No. 0079781
                                                                                    Brian D. Bremer – No. 0087363
                                                                                    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
                                                                                    Attorneys for Defendant




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                                       Sandra Kurt, Summit County Clerk of Courts
     CV-2019-01-0254             BAKER ROSS, SUSAN          06/06/2019 09:24:45 AM                DPRE                          Page 4 of 4




                                                        CERTIFICATE            OF SERVICE

                  This is to certify that on this 6th day of June, 2019, a true copy of the foregoing Pretrial Statement
                  was filed electronically. Notice of this filing will be sent to all parties by operation of the Court’s
                  electronic filing system pursuant to Loc.R. 7.04(H)(11). The notification of electronic filing via
                  the Clerk’s electronic filing system shall constitute service under Civ. R. 5.



                                                                                        /S/ David Honig
                                                                                        David Honig - No. 0079781
                                                                                        Assistant   Director   of Law




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                                       Sandra Kurt, Summit County Clerk of Courts