Subel v. AMD Plastics, LLC

1

2023-Ohio-1139

JACK M. SUBEL, ADMINISTRATOR, ET AL., Plaintiffs-Appellants, v. AMD PLASTICS, LLC, ET AL., Defendants-Appellees.

No. 111770

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 6, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-21-946764

Dubyak Nelson, LLC, Robert J. Dubyak, and Christina C. Spallina, for appellants.

Ulmer & Berne, LLP, Jeffrey J. Patter, Sarah M. Benoit, and Mengxue Xie, for appellees.

JOURNAL ENTRY AND OPINION

FRANK DANIEL CELEBREZZE, III, P.J.

{¶ 1} Appellant Jack M. Subel, as Administrator of the Estate of Jack Louis Subel and Carol E. Subel ("Estate"), appeals the judgment of the Cuyahoga County Court of Common Pleas granting the motion for summary judgment of appellees AMD Plastics, LLC ("AMD") and Brian Coll ("Coll") (collectively "appellees") on the Estate's claims against them. After a thorough review of the applicable law and facts, we affirm in part, reverse in part, and remand for further proceedings.

I. Factual and Procedural History

{¶ 2} This appeal arises from a dispute over the existence of a contract for commission fees. AMD is an Ohio LLC that is in the business of manufacturing sheet products for customers in the automotive industry. Coll is the president and majority owner of AMD. AMD employed the decedent, Jack Louis Subel ("Subel" or "decedent"), as a sales agent and later vice president of sales, for several years until his passing in December 2018.

{¶ 3} In 2017 and 2018, Subel pursued Daimler, a large supplier of cars and trucks, for AMD to supply Daimler with tooling and production parts of P4 headliners for use in Daimler's freightliner truck lines.

{¶ 4} The Estate claims that in summer and/or fall 2018, appellees agreed to pay Subel a 2 percent commission on all sales of P4 production parts, along with tooling, for five years ("Purported Agreement"). The Estate further maintains that the commissions were to be paid in monthly installments and that the terms of the Purported Agreement were not to be affected by the financial performance of AMD. Finally, the Estate contends that the parties agreed that if Subel passed away during the five-year period of the Purported Agreement, any commissions owed to him would be paid to his wife, Carol Subel ("Carol").

{¶ 5} The Estate asserts that Coll represented to Subel in September 2018 that he was having his attorney reduce the terms of the Purported Agreement to writing. Subel did not receive a written agreement, but in November 2018, he sent an email to Coll and AMD memorializing the terms of the Purported Agreement. Coll did not respond to this email, and Subel passed away in December 2018.

{¶ 6} In January 2019, Carol sent an email to Coll requesting an opportunity to discuss the terms of the Purported Agreement. Coll did not respond to this email.

{¶ 7} In February 2020, counsel for the estate sent an email to Coll stating as follows:

My firm has been retained to represent the Estate of Jack Subel (the "Estate") for commissions owed to the Estate by AMD Plastics, LLC ("AMD"). It is my understanding that Mr. Subel procured the P4 headliner business for AMD from Daimler AG ("Daimler") prior to his passing in December of 2018, and that AMD has begun shipping, or is about to begin shipping, products to Daimler. Mr. Subel's commission agreement with AMD entitled him to 2% of the gross sales to Daimler. Please provide me with all documentation between AMD and Daimler, including but not limited to all contracts, purchase orders and invoices, in order to determine the amount of commissions owed, and to be owed, to the Estate. Please do not hesitate to contact me with any questions.

{¶ 8} After a week without any response from Coll counsel for the Estate again sent an email requesting documents to determine the commissions owed to the Estate.

{¶ 9} In April 2020, Coll forwarded an email to counsel for the Estate from AMD's Chief Financial Officer attaching AMD's invoices reflecting total P4 headliner sales from July 2019 to March 2020 of $1,566.76. Coll further stated in the email, "To whom and where would you like me to send the $32.00 commission check[?]"

{¶ 10} The Estate filed a complaint against appellees alleging claims for breach of contract, unjust enrichment, and failure to pay commissions due under R.C. 1335.11. The complaint further sought a judgment declaring that appellees were required to remit payments under the Purported Agreement within 13 days of the payments becoming due for the next five years.

{¶ 11} Appellees moved to dismiss the Estate's claims, arguing that they failed to state a claim upon which relief can be granted. The court denied the motion to dismiss, and appellees then filed their answer. Appellees later amended their answer to add counterclaims for tortious interference with prospective contractual and business relations along with breach of the duties of loyalty and good faith.

{¶ 12} Appellees moved for summary judgment on the Estate's claim as well as their own counterclaim. Appellees argued that there was no agreement between the parties, and even if the court were to find an agreement existed, the Estate's claims were barred by the statute of frauds. Appellees further asserted that the estate could not maintain a claim for unjust enrichment.

{¶ 13} In support of their motion, appellees submitted the affidavit of Coll wherein he stated he was generally agreeable to an arrangement with Subel that included a 2 percent commission on revenue received by AMD for the P4 headliner parts for a two-year period. Coll further stated that in September 2018, he informed Subel via text message that he would have his attorney prepare a written agreement regarding commissions for the P4 headliner for their review and terminating AMD's relationship with Subel. The text message was attached to Coll's affidavit and stated as follows:

I have the lawyer drafting the commission agreement for P4 headliners. At this point I see no purpose to pay you a monthly fee for zero services. I also am not willing to pay commission for future products that I am doing all the work on.

Therefore I think it is best for us to honor the P4 headliner commission and move on.

Thanks for everything over the years and best of luck! I will have the commission agreement back to you next week.

Brian

{¶ 14} Coll further acknowledged in his affidavit that he received an email from Subel in November 2018 purporting to memorialize terms that the two had agreed upon. Coll denied in his affidavit that he was agreeable to the terms Subel set forth and stated that he took the email as an ongoing effort to negotiate an agreement.

{¶ 15} The Estate filed a response in opposition, offering the affidavits of Carol and Subel's son, Jack M. Subel, correspondence between counsel for the Estate and Coll (outlined above), along with invoices for AMD. Also attached to the Estate's brief in opposition was the affidavit of Dean A. Sutton, CPA, who is the manager, accounts payable, of Daimler. Sutton stated that he had conducted a search of available records at Daimler evidencing purchases by Daimler of P4 headliners manufactured and sold by AMD to Daimler from 2019 to June 2022. Sutton attached to his affidavit a spreadsheet summarizing the records and data retrieved.

{¶ 16} The trial court granted appellees' motion for summary judgment as to the Estate's claims, finding that no genuine issues of material fact remained. The court denied appellees' motion for summary judgment on their counterclaim. Appellees then voluntarily dismissed the counterclaim, and the Estate appealed the trial court's granting of summary judgment, raising one assignment of error for our review:

The trial court erred, as a matter of law, by granting summary judgment in favor of defendant-appellees and against plaintiff-appellants.

II. Law and Analysis

{¶ 17} In its sole assignment of error, the Estate argues that the trial court erred by finding that there were no facts in dispute in this matter, including whether the Purported Agreement was valid.

{¶ 18} Under Civ.R. 56, summary judgment is appropriate when no genuine issue exists as to any material fact and, in viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion that is averse to the nonmoving party, entitling the moving party to judgment as a matter of law.

{¶ 19} It is well established that the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 604 N.E.2d 138 (1992).

{¶ 20} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or material element of the nonmoving party's claim." (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). The nonmoving party has a reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Id. at 293. The nonmoving party must set forth "specific facts" by the means listed in Civ.R. 56(C) showing a genuine issue for trial exists. Id.

{¶ 21} This court reviews a trial court's granting of summary judgment de novo. Brown v. Cty. Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C), evaluate the...