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CV-2019-01-0254 FLAGG LANZINGER, JILL 01/21/2019 18:14:35 PM CMCO Page 1 of 7
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
NORDONIA LANDSCAPE SUPPLIES, LLC ) CASE NO.:
285 E. Twinsburg Rd., Ste F )
Northfield, OH 44067 )
) JUDGE:
Plaintiff, )
)
vs. ) COMPLAINT
)
CITY OF AKRON )
161 S. High St., Ste 202 ) JURY TRIAL DEMANDED
Akron, OH 44308 )
)
Defendant. )
Nordonia Landscape Supplies, LLC (“NLS”) brings this Complaint against the City of
Akron (the “City”) in the Summit County Court of Common Pleas for breach of contract and
promissory estoppel.
PARTIES
1. 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.
2. The City is a municipal corporation that purchases road salt on a yearly basis.
JURISDICTION
3. This Court has original jurisdiction of this action under R.C. 2305.01.
FACTUAL ALLEGATIONS
4. In August 2018, NLS purchased 24,000 tons of road salt to be delivered to Pinney
Dock in Ashtabula, Ohio from Siwa Egypt.
5. In September 2018, NLS took delivery of the 24,000 tons of road salt at Pinney
Dock. Prior to it arriving, 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.
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6. 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 for the City. He also stated he would need to bring in a second
vessel for the remaining 15,000.
7. 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 (the “RFQ”). The RFQ stated:
This signed bid shall be considered an offer on the part of the contractor, which offer
shall be deemed accepted upon approval by the City of Akron Board of Control, or the
issuance of a purchase order…
8. On October 1, 2018, Posey sent two quotes to Herron via email: one for the
10,000 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 price per
ton. In the email, Posey stated:
Attached you will find your salt quotes for the 2018/2019 winter season. As I explained
on the phone I have 10K ton available on the ground is Ashtabula right now that you are
more than welcome to go see or you may reach out to the City of Aurora as they have
been up to see it. I would need paid ASAP to secure that material. If you want the
additional 15K ton I would need that money deposited into an escrow account ASAP in
order for me to secure a second vessel from Egypt. The escrow funds would then ONLY
be released when the vessel landed in Ashtabula. Please understand the urgency of either
or both of these transactions as I receive multiple calls on a daily basis and I have to be
fair and use the first come first serve method to avoid any issues. Thanks again for the
opportunity to service your winter needs. If you need any other information or there is
anything else I can do to help please don't hesitate to ask.
9. On October 2, 2018, Posey asked Herron if the City will 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.
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10. 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.
11. 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. Soon thereafter that day, Posey purchased a
2019 Kenworth T880 dump truck for $189,160 using an auto loan, so NLS could deliver the
10,000 tons of road salt to the City. NLS attorney James Pearl (“Attorney Pearl”) sent Herron
NLS’s W-9 and an escrow agreement for payment.
12. At 4:04 PM, Posey emailed Herron asking if she got the W-9 and escrow
agreement. He also 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.
13. At 4:05 PM, Herron asked Posey why the two quotes he sent her had different
prices. Posey called Herron and explained to her that the second quote for 15,000 had a
higher price than the first due to him having to order the salt from Egypt during a period of
higher demand.
14. 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. Ex. 8.
15. Between October 5, 2018 and October 15, 2018, Posey called Herron multiple
times to check the status of payment. She did not pick up the phone or call back. On October
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16, 2018, Posey sent Herron an email asking about the October 15th Council meeting. She did
not respond.
16. Between October 16, 2018 and October 23, 2018, Posey called Herron multiple
times to check the status of payment. She did not pick up the phone or call back. On October
23, 2018, Posey sent Herron an email asking about the October 22nd Board of Controls
meeting. She did not respond.
17. On October 19, 2018, Posey purchased another 2019 Peterbilt 567 dump truck for
$218,414.88 using an installment contract, so NLS could deliver the 10,000 tons of road salt
to the City.
18. 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 Akron was cancelling their contract with NLS. Neither
responded.
19. On November 1, 2018, Attorney Pearl sent an email to Herron alleging the City is
attempting to breach its road salt agreement with NLS and asked her to call him to discuss
the matter. Herron forwarded the matter to the City’s law department. The assistant law
director told Attorney Pearl on November 14, 2018 that the City wanted to purchase the sale
for $5 per ton less than NLS’s quote and they refused to state in writing that it cancelled the
contract or did not have a valid contract with NLS.
20. In late November, NLS retained counsel to pursue the matter against the City.
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
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$20.00 lower per ton than the City agreed to. This was due to a lowered demand for road salt
due to unseasonably warm weather in December. The purchaser was able to transport the
road salt themselves, so the dump trucks NLS purchased are now idle with no use.
COUNT ONE: BREACH OF CONTRACT
21. The above paragraphs are incorporated herein.
22. To substantiate a breach of contract claim, a party must establish four elements:
(1) the existence of an agreement, (2) that the non-breaching party fulfilled its obligations
under the agreement; (3) a breach without legal justification; and (4) damages to the non-
breaching party. When a party to a contract declares that he or she will not perform the terms
of the contract, an anticipatory repudiation occurs and the injured party can immediately
maintain an action for breach.
23. The City reached out to NLS with the RFQ which stated, “this signed bid shall be
considered an offer on the part of the contractor, which offer shall be deemed accepted upon
approval by the City of Akron Board of Control, or the issuance of a purchase order.” On
October 1, 2018, NLS sent the City a quote for 10,000 tons of road salt. On October 5, 2018,
the City accepted the quote and signed it as a purchase order for the 10,000 tons of road salt.
Thus, a binding agreement existed between NLS and the City.
24. NLS fulfilled its obligations under the agreement to hold 10,000 tons of road salt
and be prepared to deliver it from Ashtabula to the City’s facilities on a regular basis. The
City then failed to pay NLS for the road salt and refused to provide a cancellation or
anticipatory repudiation in writing, which would have allowed NLS to sell the road salt
without breaching the contract.
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25. The City’s justification for breaching the contract was to get a lower price; this is
not a legal justification. As a result of the City’s breach, NLS suffered $200,000 in
expectancy damages and at least $50,000 in lost delivery profits.
WHEREFORE, Plaintiff respectfully demands judgment against Defendant for damages
in excess of $25,000 including, but not limited to:
a. Expectancy damages from the lost sale of 10,000 tons of road salt;
b. Lost profits from the lost delivery of 10,000 tons of road salt;
c. Reasonable attorney fees; and
d. Such other and further relief as the Court deems just and equitable.
COUNT TWO: PROMISSORY ESTOPPEL
26. The above paragraphs are incorporated herein.
27. To succeed on a promissory estoppel claim, a party must show (1) a clear and
unambiguous promise; (2) reliance on that promise; (3) reliance that was reasonable and
foreseeable; and (4) damages caused by that reliance.
28. The City’s purchasing agent made an unambiguous promise to NLS that the City
would purchase 10,000 tons of road salt and pay for it a couple weeks after the October 22nd
Board of Controls meeting.
29. NLS reasonably relied on that promise because the City provided Posey with a
signed contract and refused to provide him with written assurance that the contract was
cancelled or void. Posey feared the City would sue him for breach of contract if he sold the
road salt without such written assurance.
30. NLS’s reliance on the City’s promise caused it to withhold selling the 10,000 tons
of road salt until unseasonably warm weather substantially reduced demand for road salt.
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NLS sold the 10,000 tons of road salt for a price $20.00 to $30.00 per ton less than what it
could have received in October and November, thus causing between $200,000 and $300,000
in reliance damages.
31. NLS’s reliance on the City’s promise caused it to purchase two dump trucks for a
combined price of over $400,000 to deliver the road salt. NLS had to sell the road salt to a
purchaser who did not require delivery services, so now the dump trucks are idle causing
NLS at least $50,000 in reliance damages if NLS had to sell them now at a loss.
WHEREFORE, Plaintiff respectfully demands judgment against Defendant for damages
in excess of $25,000 including, but not limited to:
a. Reliance damages from withholding the sale of 10,000 tons of road salt;
b. Reliance damages from purchase of idle dump trucks;
c. Reasonable attorney fees; and
d. Such other and further relief as the Court deems just and equitable.
JURY DEMAND
A trial by jury is demanded on all issues so triable in this action.
Respectfully Submitted,
/s/ Warner Mendenhall
Warner Mendenhall, 0070165
Logan Trombley, 0096858
Law Offices of Warner Mendenhall
190 N. Union St., Suite 201
Akron, OH 44304
(330)535-9160; fax (330) 762-9743
warner@warnermendehall.com
logan@warnermendenhall.com
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Sandra Kurt, Summit County Clerk of Courts
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CV-2019-01-0254 FLAGG LANZINGER, JILL 01/21/2019 18:14:35 PM CMCO Page 1 of 7 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO NORDONIA LANDSCAPE SUPPLIES, LLC ) CASE NO.: 285 E. Twinsburg Rd., Ste F ) Northfield, OH 44067 ) ) JUDGE: Plaintiff, ) ) vs. ) COMPLAINT ) CITY OF AKRON ) 161 S. High St., Ste 202 ) JURY TRIAL DEMANDED Akron, OH 44308 ) ) Defendant. ) Nordonia Landscape Supplies, LLC (“NLS”) brings this Complaint against the City of Akron (the “City”) in the Summit County Court of Common Pleas for breach of contract and promissory estoppel. PARTIES 1. 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. 2. The City is a municipal corporation that purchases road salt on a yearly basis. JURISDICTION 3. This Court has original jurisdiction of this action under R.C. 2305.01. FACTUAL ALLEGATIONS 4. In August 2018, NLS purchased 24,000 tons of road salt to be delivered to Pinney Dock in Ashtabula, Ohio from Siwa Egypt. 5. In September 2018, NLS took delivery of the 24,000 tons of road salt at Pinney Dock. Prior to it arriving, 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. 1 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 FLAGG LANZINGER, JILL 01/21/2019 18:14:35 PM CMCO Page 2 of 7 6. 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 for the City. He also stated he would need to bring in a second vessel for the remaining 15,000. 7. 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 (the “RFQ”). The RFQ stated: This signed bid shall be considered an offer on the part of the contractor, which offer shall be deemed accepted upon approval by the City of Akron Board of Control, or the issuance of a purchase order… 8. On October 1, 2018, Posey sent two quotes to Herron via email: one for the 10,000 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 price per ton. In the email, Posey stated: Attached you will find your salt quotes for the 2018/2019 winter season. As I explained on the phone I have 10K ton available on the ground is Ashtabula right now that you are more than welcome to go see or you may reach out to the City of Aurora as they have been up to see it. I would need paid ASAP to secure that material. If you want the additional 15K ton I would need that money deposited into an escrow account ASAP in order for me to secure a second vessel from Egypt. The escrow funds would then ONLY be released when the vessel landed in Ashtabula. Please understand the urgency of either or both of these transactions as I receive multiple calls on a daily basis and I have to be fair and use the first come first serve method to avoid any issues. Thanks again for the opportunity to service your winter needs. If you need any other information or there is anything else I can do to help please don't hesitate to ask. 9. On October 2, 2018, Posey asked Herron if the City will 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. 2 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 FLAGG LANZINGER, JILL 01/21/2019 18:14:35 PM CMCO Page 3 of 7 10. 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. 11. 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. Soon thereafter that day, Posey purchased a 2019 Kenworth T880 dump truck for $189,160 using an auto loan, so NLS could deliver the 10,000 tons of road salt to the City. NLS attorney James Pearl (“Attorney Pearl”) sent Herron NLS’s W-9 and an escrow agreement for payment. 12. At 4:04 PM, Posey emailed Herron asking if she got the W-9 and escrow agreement. He also 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. 13. At 4:05 PM, Herron asked Posey why the two quotes he sent her had different prices. Posey called Herron and explained to her that the second quote for 15,000 had a higher price than the first due to him having to order the salt from Egypt during a period of higher demand. 14. 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. Ex. 8. 15. Between October 5, 2018 and October 15, 2018, Posey called Herron multiple times to check the status of payment. She did not pick up the phone or call back. On October 3 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 FLAGG LANZINGER, JILL 01/21/2019 18:14:35 PM CMCO Page 4 of 7 16, 2018, Posey sent Herron an email asking about the October 15th Council meeting. She did not respond. 16. Between October 16, 2018 and October 23, 2018, Posey called Herron multiple times to check the status of payment. She did not pick up the phone or call back. On October 23, 2018, Posey sent Herron an email asking about the October 22nd Board of Controls meeting. She did not respond. 17. On October 19, 2018, Posey purchased another 2019 Peterbilt 567 dump truck for $218,414.88 using an installment contract, so NLS could deliver the 10,000 tons of road salt to the City. 18. 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 Akron was cancelling their contract with NLS. Neither responded. 19. On November 1, 2018, Attorney Pearl sent an email to Herron alleging the City is attempting to breach its road salt agreement with NLS and asked her to call him to discuss the matter. Herron forwarded the matter to the City’s law department. The assistant law director told Attorney Pearl on November 14, 2018 that the City wanted to purchase the sale for $5 per ton less than NLS’s quote and they refused to state in writing that it cancelled the contract or did not have a valid contract with NLS. 20. In late November, NLS retained counsel to pursue the matter against the City. 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 4 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 FLAGG LANZINGER, JILL 01/21/2019 18:14:35 PM CMCO Page 5 of 7 $20.00 lower per ton than the City agreed to. This was due to a lowered demand for road salt due to unseasonably warm weather in December. The purchaser was able to transport the road salt themselves, so the dump trucks NLS purchased are now idle with no use. COUNT ONE: BREACH OF CONTRACT 21. The above paragraphs are incorporated herein. 22. To substantiate a breach of contract claim, a party must establish four elements: (1) the existence of an agreement, (2) that the non-breaching party fulfilled its obligations under the agreement; (3) a breach without legal justification; and (4) damages to the non- breaching party. When a party to a contract declares that he or she will not perform the terms of the contract, an anticipatory repudiation occurs and the injured party can immediately maintain an action for breach. 23. The City reached out to NLS with the RFQ which stated, “this signed bid shall be considered an offer on the part of the contractor, which offer shall be deemed accepted upon approval by the City of Akron Board of Control, or the issuance of a purchase order.” On October 1, 2018, NLS sent the City a quote for 10,000 tons of road salt. On October 5, 2018, the City accepted the quote and signed it as a purchase order for the 10,000 tons of road salt. Thus, a binding agreement existed between NLS and the City. 24. NLS fulfilled its obligations under the agreement to hold 10,000 tons of road salt and be prepared to deliver it from Ashtabula to the City’s facilities on a regular basis. The City then failed to pay NLS for the road salt and refused to provide a cancellation or anticipatory repudiation in writing, which would have allowed NLS to sell the road salt without breaching the contract. 5 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 FLAGG LANZINGER, JILL 01/21/2019 18:14:35 PM CMCO Page 6 of 7 25. The City’s justification for breaching the contract was to get a lower price; this is not a legal justification. As a result of the City’s breach, NLS suffered $200,000 in expectancy damages and at least $50,000 in lost delivery profits. WHEREFORE, Plaintiff respectfully demands judgment against Defendant for damages in excess of $25,000 including, but not limited to: a. Expectancy damages from the lost sale of 10,000 tons of road salt; b. Lost profits from the lost delivery of 10,000 tons of road salt; c. Reasonable attorney fees; and d. Such other and further relief as the Court deems just and equitable. COUNT TWO: PROMISSORY ESTOPPEL 26. The above paragraphs are incorporated herein. 27. To succeed on a promissory estoppel claim, a party must show (1) a clear and unambiguous promise; (2) reliance on that promise; (3) reliance that was reasonable and foreseeable; and (4) damages caused by that reliance. 28. The City’s purchasing agent made an unambiguous promise to NLS that the City would purchase 10,000 tons of road salt and pay for it a couple weeks after the October 22nd Board of Controls meeting. 29. NLS reasonably relied on that promise because the City provided Posey with a signed contract and refused to provide him with written assurance that the contract was cancelled or void. Posey feared the City would sue him for breach of contract if he sold the road salt without such written assurance. 30. NLS’s reliance on the City’s promise caused it to withhold selling the 10,000 tons of road salt until unseasonably warm weather substantially reduced demand for road salt. 6 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 FLAGG LANZINGER, JILL 01/21/2019 18:14:35 PM CMCO Page 7 of 7 NLS sold the 10,000 tons of road salt for a price $20.00 to $30.00 per ton less than what it could have received in October and November, thus causing between $200,000 and $300,000 in reliance damages. 31. NLS’s reliance on the City’s promise caused it to purchase two dump trucks for a combined price of over $400,000 to deliver the road salt. NLS had to sell the road salt to a purchaser who did not require delivery services, so now the dump trucks are idle causing NLS at least $50,000 in reliance damages if NLS had to sell them now at a loss. WHEREFORE, Plaintiff respectfully demands judgment against Defendant for damages in excess of $25,000 including, but not limited to: a. Reliance damages from withholding the sale of 10,000 tons of road salt; b. Reliance damages from purchase of idle dump trucks; c. Reasonable attorney fees; and d. Such other and further relief as the Court deems just and equitable. JURY DEMAND A trial by jury is demanded on all issues so triable in this action. Respectfully Submitted, /s/ Warner Mendenhall Warner Mendenhall, 0070165 Logan Trombley, 0096858 Law Offices of Warner Mendenhall 190 N. Union St., Suite 201 Akron, OH 44304 (330)535-9160; fax (330) 762-9743 warner@warnermendehall.com logan@warnermendenhall.com 7 Sandra Kurt, Summit County Clerk of Courts