Spoerke v. Abruzzo , 2014 Ohio 1362 ( 2014 )

[Cite as Spoerke v. Abruzzo, 2014-Ohio-1362.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
MARK W. SPOERKE, : OPINION
Plaintiff-Appellant, :
CASE NO. 2013-L-093
- vs - :
CHARLIE ABRUZZO, PRESIDENT, :
RED LINE MARINE LIQUIDATORS,
Defendant-Appellee. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 12 CV 001049.
Judgment: Affirmed.
Tammy Georgian, Tammy G. Gibson Co., LPA, 38118 Second Street, Willoughby, OH
44094 (For Plaintiff-Appellant).
Scott D. Simpkins and Stewart D. Roll, Climaco, Lefkowitz, Peca, Wilcox & Garofoli
Co., 55 Public Square, Suite 1950, Cleveland, OH 44113 (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Mark W. Spoerke, appeals the summary judgment of the Lake
County Court of Common Pleas in favor of appellee, Red Line Marine Liquidators, Inc.,
on Spoerke’s claim for breach of contract. At issue is whether any genuine issues of
material fact exist concerning whether the parties had a meeting of the minds. For the
reasons that follow, we affirm.
{¶2} On April 26, 2012, Spoerke, acting pro se, filed a complaint against Red
Line’s president, Charlie Abruzzo, alleging that Mr. Abruzzo breached a contract to sell
a boat to Spoerke. The complaint was later amended to substitute Red Line for Mr.
Abruzzo as the defendant. Red Line filed an answer, denying the material allegations of
the amended complaint.
{¶3} Subsequently, Red Line filed a motion for summary judgment, denying the
existence of a contract due to the lack of a meeting of the minds regarding terms of the
sale. Specifically, Red Line argued that Spoerke did not accept its offer, but rather
submitted a counteroffer that was not accepted by Red Line. Spoerke filed his brief in
opposition, and Red Line filed a reply brief. Spoerke then filed a supplemental brief in
opposition. Thereafter, counsel filed a notice of appearance on behalf of Spoerke and a
notice of supplementation with an attached affidavit from Spoerke. Red Line filed a
reply to Spoerke’s notice of supplementation. Thereafter, Spoerke filed a second
supplemental brief in opposition.
{¶4} The statement of facts that follows is derived from the parties’ evidentiary
materials submitted on summary judgment. Red Line, which is based in Oceanport,
New Jersey, sells pre-owned boats to the public at wholesale prices. It sells a wide
variety of mid-size boats in the 35-foot to 50-foot range. Spoerke is a resident of Mentor,
Ohio.
{¶5} Spoerke had been looking at various yacht broker websites for several
years for a used Albemarle boat because he likes that type of boat, but felt a new
Albemarle would be too expensive.
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{¶6} On Sunday, April 8, 2012, Spoerke learned that Red Line had a 2006 41-
foot Albemarle Express sport fishing boat for sale. As a result, he contacted Red Line
via e-mail expressing an interest in that boat. On Monday, April 9, 2012, he made a
telephone call to Red Line following up on his e-mail.
{¶7} Meanwhile, on Tuesday, April 10, 2012, Red Line signed a purchase
agreement for the subject boat with another buyer, Jonathan Danforth, which was
conditioned on Mr. Danforth receiving credit approval. That day, Mr. Danforth was
denied credit approval, invalidating his contract, and the boat again became available
for sale.
{¶8} On Wednesday, April 11, 2012, Red Line’s president Mr. Abruzzo called
Spoerke and told him there had been a sale on the boat, but that it had fallen through
and the boat was again available for sale. They discussed the terms of the sale of the
boat to Spoerke. As part of the sale, Spoerke would be trading in his boat, which was a
41-foot 2001 Formula PC.
{¶9} Later on April 11, 2012, Red Line sent an e-mail to Spoerke with a
proposed purchase contract signed by Mr. Abruzzo on behalf of Red Line containing the
terms the parties discussed, a list of boat surveyors, and directions to Red Line’s marina
in New Jersey. Mr. Abruzzo asked Spoerke to sign the proposed purchase contract and
to e-mail the signed contact to Red Line. The proposed contract reflected the purchase
price of the boat as $319,000, a deposit of $15,000, and a trade-in allowance for
Spoerke’s Formula PC boat in the amount of $88,000, leaving a balance due of
$216,000. The sale was to close within two weeks, with the survey costs and costs of
the sea trial to be borne by Spoerke.
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{¶10} Later that day, Spoerke e-mailed Red Line stating that, since the purchase
numbers were not final, did Red Line want him to sign and return the contract and wire
the deposit or should he finalize the details of financing with his lender. Spoerke said
he wanted to use his own lender because his bank was familiar with his finances.
{¶11} Mr. Abruzzo responded that Red Line needed the contract signed and the
deposit paid. In response, Spoerke wired the $15,000 deposit to Red Line and sent
back a signed purchase agreement for the boat. However, Spoerke wrote and initialed
on the contract form next to the dollar amounts the phrase, “Will adjust per the terms of
the financing.” (Emphasis added.)
{¶12} Still later on April 11, 2012, Spoerke sent an e-mail to Mr. Abruzzo,
stating:
{¶13} I am set on the financing, but we need to provide the final details to
the lender. How much can we gross up the trade and purchase
price on the Albemarle. Can we go to $140,000 on the Formula,
and $371,000 on the Albemarle, or $150,000 on the Formula and
$381,000 on the Albemarle. I would like to gross it up as much as
possible and save my cash but didn’t know if this would have any
negative impact on you. Once I have that revised purchase
agreement, we should be set to proceed and close pending the
survey, etc.
{¶14} Spoerke testified in his deposition that the reason he was attempting to
increase the value of both the Albemarle and his trade-in boat was because he thought
he would thereby obtain a tax benefit for himself.
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{¶15} Mr. Abruzzo responded with an e-mail stating, “make the numbers how
ever you need em and I will sign it * * *. I wouldn’t go past 150k on the PC * * *.
{¶16} Two days later, on Friday, April 13, 2012, Spoerke sent an e-mail to Red
Line, stating he had loan approval subject to the survey next Tuesday and the sea trial
on April 21, 2012. He said his lender will need a signed copy of the purchase
agreement to finalize the loan. Spoerke prepared and attached to his e-mail what he
referred to as “a revised purchase agreement,” reflecting a purchase price of $381,000;
$150,000 for Spoerke’s Formula PC trade-in; and a $15,000 deposit, with a balance due
of $231,000. In this e-mail, Spoerke asked Mr. Abruzzo to sign the revised contract and
to forward it to his lender.
{¶17} However, Mr. Abruzzo did not sign and return the revised purchase
agreement to Spoerke’s lender. Instead, on the following Wednesday, April 18, 2012,
Red Line proposed selling a similar, but smaller, boat to Spoerke for about $250,000.
The boat had no tower or outriggers to remove, which Spoerke had said he would have
to do on the 41-foot Albemarle. Spoerke responded by e-mail saying that he wanted to
buy the 41-foot Albemarle. He said his lender would be contacting Red Line.
{¶18} However, Red Line did not proceed with the sale of the Albemarle to
Spoerke. Mr. Abruzzo stated in his affidavit that Red Line rejected Spoerke’s
counteroffer because it was concerned that the inflated purchase price and trade-in
allowance could be construed as bank fraud in connection with Spoerke’s efforts to
obtain financing. On April 23, 2012, Mr. Abruzzo e-mailed Spoerke, telling him that
Spoerke was asking Red Line to participate in bank fraud, which it would not do, and
returned Spoerke’s $15,000 deposit.
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{¶19} Thereafter, Red Line again made the boat available for sale. On April 24,
2012, Red Line sold the Albemarle to Jonathon Danforth, the same person who had
unsuccessfully attempted to buy it on April 10, 2012, for $319,000, after Mr. Danforth
obtained financing. Two days later, on April 26, 2012, Spoerke, pro se, filed this action.
{¶20} The trial court granted summary judgment in favor of Red Line, finding
that, as a matter of law, there was no meeting of the minds and no enforceable contract
and thus no breach of contract. The court found that, based on the parties’
correspondence, they did not have a common intention regarding some of the essential
terms of the contract, i.e., the price of Albemarle and the value of Spoerke’s trade-in.
The court found that, while the sales agreement Red Line e-mailed to Spoerke on April
11, 2013 could be construed as an offer to sell, Spoerke did not accept it. Rather, he
added a provision indicating the terms would be adjusted for financing purposes. Later
that day, Spoerke sought to raise the sales price of the Albemarle and the trade-in value
of his boat. The court found that, while Red Line considered Spoerke’s offer, it did not
accept it. Spoerke admitted that Red Line never signed the revised purchase contract
he sent to Red Line on April 11, 2012. Red Line’s president, Mr. Abruzzo, stated in his
affidavit that he did not accept the revised purchase contract or send the revised terms
of the contract to Spoerke’s lender because he, Mr. Abruzzo, was afraid it could be
construed as bank fraud. The court found that, without Red Line’s acceptance of
Spoerke’s counteroffer, there was no contract.
{¶21} Spoerke appeals the trial court’s judgment, asserting the following for his
sole assignment of error:
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{¶22} “The trial court erred in granting Appellee’s motion for summary judgment
based upon its opinion that the totality of the correspondence indicated that the parties
did not have a distinct and common intention with regard to some of the essential terms
of the sale, finding there was no meeting of the minds and no enforceable contract.”
{¶23} This court has held that summary judgment is proper when: (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 nonmoving party, that party being entitled to have the evidence
construed most strongly in his favor. Civ.R. 56(C); Frano v. Red Robin International,
Inc., 181 Ohio App.3d 13, 2009-Ohio-685, ¶12 (11th Dist.), citing Leibreich v. A.J.
Refrigeration, Inc., 67 Ohio St.3d 266, 268 (1993).
{¶24} The party seeking summary judgment on the ground that the nonmoving
party cannot prove his case bears the initial burden of informing the trial court of the
basis for the motion and of identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact on the essential elements of the nonmoving
party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996).
{¶25} The moving party must point to some evidence of the type listed in Civ.R.
56(C) that affirmatively demonstrates that the nonmoving party has no evidence to
support his claim. Dresher, supra, at 293.
{¶26} If this initial burden is not met, the motion for summary judgment must be
denied. Id. However, if the moving party has satisfied his initial burden, the nonmoving
party then has a reciprocal burden, as outlined in Civ.R. 56(E), to set forth specific facts
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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 him. Id.
{¶27} Since a trial court’s decision ruling on a motion for summary judgment
involves only questions of law, we conduct a de novo review of the trial court’s
judgment. DiSanto v. Safeco Ins. of Am., 168 Ohio App.3d 649, 2006-Ohio-4940, ¶41
(11th Dist.). Further, the existence of a contract is a question of law. Zelina v. Hillyer,
165 Ohio App.3d 255, 2005-Ohio-5803, ¶12 (9th Dist.). This court reviews questions of
law regarding the existence of contracts de novo. Continental W. Condominium Unit
Owners Assn. v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501, 502 (1996).
{¶28} In Ohio, the Statute of Frauds provides that “a contract for the sale of
goods for the price of five hundred dollars or more is not enforceable * * * unless there
is some writing sufficient to indicate that a contract for sale has been made between the
parties and signed by the party against whom enforcement is sought or by his
authorized agent * * *.” R.C. 1302.04.
{¶29} The essential elements of a contract are an offer, acceptance, contractual
capacity, consideration (the bargained-for legal benefit and/or detriment), a
manifestation of mutual assent and legality of object and of consideration. Adlaka v.
Valley Elec. Consol, Inc., 11th Dist Trumbull No. 2007-T-0071, 2008-Ohio-1690, ¶20.
For a contract to be enforceable, the parties must have a meeting of the minds as to all
essential terms. Id.; Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, ¶16. Unless
the parties agree as to all essential terms, no contract exists. Id. “The existence of an
enforceable contract is a prerequisite to a claim for breach of contract.” Ireton v. JTD
Realty Invests., L.L.C., 12th Dist. Clermont No. CA2010-04-023, 2011-Ohio-670, ¶38.
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{¶30} To constitute a valid contract, there must be an offer on the one side and
an acceptance on the other resulting in a meeting of the minds of the parties. Noroski v.
Fallet, 2 Ohio St.3d 77, 79 (1982). Generally, the submission of a purchase order is
viewed as being an offer, which may then be accepted or rejected by the offeree.
American Bronze Corp. v Streamway Products, 8 Ohio App.3d 223 (8th Dist.1982),
paragraph one of the syllabus. Further, “[a] reply to an offer [by the offeree] which
purports to accept but is conditional on the offeror’s assent to terms additional to or
different from those offered is not an acceptance but is a counteroffer.” Foster v. Ohio
State University, 41 Ohio App.3d 86, 88 (10th Dist. 1987), citing 1 Restatement of the
Law 2d, Contracts (1981) 145, Section 59. Moreover, the transmission of various
amendments to a proposed purchase agreement constitute counteroffers used for
negotiating purposes before finalizing the intended agreement. Hairston v. Goodman,
8th Dist. Cuyahoga No. 58193, 1991 Ohio App. LEXIS 1176, *9 (Mar. 21, 1991). The
Eighth District in Hairston further stated:
{¶31} When plaintiff inserted the forty-eight hour “point of sale” review
provision, something remained to be done to establish the contract.
In addition, plaintiff’s response did not correspond to the terms of
the Goodmans’ counteroffer. Plaintiff had tendered either a
conditional acceptance or a counteroffer which defendants never
initialed or accepted in accord with the Statute of Frauds.
{¶32} The purchase agreement did not show a concluded contract since
the evidence establishes no meeting of the minds. Plaintiff
presented no evidence to refute defendants’ assertion they did not
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assent to the inserted alteration. At best, plaintiff tendered a
conditional acceptance which destroyed the original offer.
Otherwise, the change plaintiff made in the purchase agreement
could be considered a counteroffer on which there was no meeting
of the minds which is essential to formation of a contract. Id. at *11-
*12.
{¶33} Applying the foregoing principles to this case, the proposed purchase
contract Mr. Abruzzo sent to Spoerke can only be construed as an offer since it sought
Spoerke’s acceptance. However, Spoerke did not accept Red Line’s offer as submitted.
Rather, he accepted the offer conditioned on Red Line’s acceptance of the additional
provision Spoerke wrote on the contract that the terms would be adjusted pursuant to
the terms of financing. This condition changed the acceptance into a counteroffer, which
Red Line was required to accept in order to form a valid contract. However, Red Line
did not accept the counteroffer. In fact, Spoerke admits that Red Line did not sign off on
the counteroffer. As Red Line did not accept Spoerke’s counteroffer, no contract existed
between the parties, and Red Line was free to accept Mr. Danforth’s offer to purchase
the Albemarle.
{¶34} Contrary to Spoerke’s argument, the parties’ ongoing discussions and e-
mail correspondence was nothing more than negotiation prior to finalizing the parties’
contract. Hairston, supra. Spoerke concedes that the contract price, i.e., the price of
the Albemarle, was a key term of the contract. In Red Line’s offer, the price was shown
as $319,000. However, because Spoerke also wanted to obtain a tax benefit, he
revised the offer to show the contract price as $381,000. Spoerke’s suggestion that the
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only material term was the net price to be paid to Red Line is belied by the fact that Red
Line refused to sign Spoerke’s counteroffer. Spoerke conveniently ignores the fact that,
Red Line never signed Spoerke’s counteroffer, and, instead, Mr. Abruzzo advised him
by e-mail that his maneuverings could be construed as bank fraud in which Red Line
would not participate and returned Spoerke’s deposit.
{¶35} We therefore hold that the trial court did not err in finding that, as a matter
of law, the parties did not reach a meeting of the minds as to the price of the Albemarle
or as to the value of Spoerke’s trade-in; that no contract existed between the parties;
and that Red Line was entitled to summary judgment on Spoerke’s claim for breach of
contract.
{¶36} For the reasons stated in the opinion of this court, appellant’s assignment
of error is overruled. It is the order and judgment of this court that the judgment of the
Lake County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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