Reali, Giampetro & Scott v. Soc. Natl. Bank

• Citation: 133 Ohio App.3d 844,729 NE 2d 1259
• Decision Date: 25 June 1999
• Docket Number: No. 97CA2.,97CA2.
• Parties: REALI, GIAMPETRO & SCOTT, Appellant, v. SOCIETY NATIONAL BANK, Appellee.
• Court: Ohio Court of Appeals

133 Ohio App.3d 844

729 NE 2d 1259

REALI, GIAMPETRO & SCOTT, Appellant, v. SOCIETY NATIONAL BANK, Appellee.

No. 97CA2.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Decided June 25, 1999.

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John A. McNally, for appellant.

Howard E. Coburn and Jay Blackstone, for appellee.

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VUKOVICH, Judge.

The following appeal arises from the decision of the Mahoning County Court of Common Pleas granting summary judgment in that no genuine issue as to any material fact was felt to exist as related to allegations of tortious interference with a contract and tortious interference with a business relationship. For the reasons set forth below, the decision of the trial court is affirmed.

I. FACTS

On July 7, 1995, appellant, Reali, Giampetro & Scott, a professional corporation, filed a complaint against Society National Bank, appellee, sounding in tortious interference with a contract. Appellant alleged that it had a longstanding business relationship with John A. DePizzo, Jr., Inc. ("DePizzo") which appellee intentionally, maliciously and with wanton disregard interfered with when it conditioned the grant of a $10,000,000 line of credit to DePizzo on the use of a C.P.A. firm recommended by appellee. Appellant argues that, fearing that the line of credit would not be granted, DePizzo terminated the contractual relationship with appellant.

On August 2, 1995, appellant filed a first amended complaint in which it properly identified DePizzo, which previously had been identified as "John Doe Corporation" in the initial complaint. Appellee responded in its answer by denying all responsibility for the termination of the contract between appellant and DePizzo. Subsequently on September 5, 1996, appellee filed a motion for leave to file a motion for summary judgment, which was granted by the trial court. Additionally, on September 26, 1996, appellant filed a second amended complaint upon leave of court, which included a cause of action sounding in tortious interference with a business relationship.

Appellee filed its motion for summary judgment on September 30, 1996, at which time it argued that appellant could not establish all the necessary elements to prove a tortious interference with a contractual relationship. Appellant filed its motion in opposition to summary judgment on October 8, 1996. The initial motion for summary judgment was supplemented on October 25, 1996, at which time appellee filed a reply brief which addressed appellant's claim of tortious interference with a business relationship. Having reviewed the briefs on the matter, the trial court granted appellee's motion for summary judgment on December 5, 1996. A timely notice of appeal was filed on January 2, 1997.

Appellant raises two assignments of error on appeal.

II. ASSIGNMENT OF ERROR NUMBER ONE

Appellant's first assignment of error reads:

"The trial court erred, as a matter of law, by sustaining defendant-appellee's summary judgment motion as genuine issues of material fact exist as to whether Society tortiously interfered with the contract between Reali and DePizzo and judgment should not have been granted as a matter of law."

In appellant's first assignment of error, it is argued that an implied contract existed between appellant and DePizzo as a result of past business relations between the two parties. Appellant contends that its firm was the only C.P.A. firm utilized by DePizzo over the past several years. With the exception of certain functions that were performed in-house, appellant alleges that all accounting services were provided by its firm. Absent appellee's insistence that DePizzo utilize a firm recommended by it for the preparation of annual financial statements, appellant alleges that the prior business arrangement between it and DePizzo would have continued. Furthermore, appellant alleges that the remaining four elements had been established to sustain a claim for tortious interference with a contract. Additionally, genuine issues of material fact exist regarding whether appellee's actions rose to such a level as to permit a recovery.

The crux of appellee's response to appellant's allegations under the first assignment of error is that no contract actually existed with DePizzo that would give rise to claim for tortious interference with a contract. While appellant had prepared financial statements for DePizzo in the past, that function was based upon annual express contracts to prepare the prior year's documentation. In that all such contracts had been fully performed at the time DePizzo ceased using appellant's services, appellee argues that tortious interference cannot be established. Appellee argues that merely because the parties had done business in the past in no way binds DePizzo to utilize appellant's services ad infinitum. Absent the existence of any contract, express, implied or otherwise, appellee believes that appellant's first cause of action must fail.

A. STANDARD OF REVIEW

In considering a motion for summary judgment, Civ.R. 56(C) controls and provides that before such a motion may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379. Additionally, the party moving for summary judgment has the responsibility of clearly showing an entitlement to the granting of its motion:

"A party seeking summary judgment on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts 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 the nonmoving party." Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 274.

Due to the fact that summary judgment is designed to cut short the litigation process, trial courts should award such with caution, resolving doubts and construing evidence in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 360, 604 N.E.2d 138, 141. In that a grant of summary judgment disposes of a case based on a matter of law, this court's analysis on appeal is conducted under a de novo standard of review. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241, 244-245.

B. APPLICABLE LAW

The Ohio Supreme Court first formally recognized a cause of action for tortious interference with a contract in Kenty v. Transamerica Premium Ins. Co. (1995), 72 Ohio St.3d 415, 650 N.E.2d 863. In this decision, the court set forth the elements of the cause of action as follows: (1) the existence of a contract, (2) the wrongdoer's knowledge of the contract, (3) the wrongdoer's intentional procurement of the contract's breach, (4) lack of justification, and (5) resulting damages. Id. at 419, 650 N.E.2d at 866-867. The initial hurdle which must be overcome in order to successfully establish a cause of action for tortious interference with a contract is the existence of a contract.

While both express and implied contracts require the showing of an agreement based on a meeting of the minds and mutual assent, the manner in which these requirements are proven varies depending upon the nature of the contract. Lucas v. Costantini (1983), 13 Ohio App.3d 367, 368-369, 13 OBR 449, 449-452, 469 N.E.2d 927, 928-930. In an express contract, the assent to the contracts terms is formally expressed in the offer and acceptance of the parties. Legros v. Tarr (1989), 44 Ohio St.3d 1, 6, 540 N.E.2d 257, 262-263. However, in an implied contract no such formal offer and acceptance occur and no express agreement exists. In contrast, the meeting of the minds must be established by demonstrating that the circumstances surrounding the parties' transaction make it reasonably certain that the contract exists "as a matter of tacit understanding." State ex rel. Mallory v. Public Emp. Retirement Bd. (1998), 82 Ohio St.3d 235, 249-250, 694 N.E.2d 1356, 1367, citing Legros at 7, 540 N.E.2d at 263-264. The conduct and declarations of the party must be examined to determine the existence of an intent to be bound. Columbus Hocking Valley & Toledo Ry. Co. v. Gaffney (1901), 65 Ohio St. 104, 116-117, 61 N.E. 152, 153-154. Furthermore, the existence of a contract is generally determined by a court as a matter of law. Doe v. Adkins (1996), 110 Ohio App.3d 427, 436, 674 N.E.2d 731, 736-737, citing Latina v. Woodpath Dev. Co. (1991), 57 Ohio St.3d 212, 567 N.E.2d 262.

C. ANALYSIS

A review of the record indicates that not only was there an absence of an express contract that bound the parties to ongoing business relations but there also was insufficient support to illustrate the existence of an implied contract. The business dealings between appellant and DePizzo had consistently been governed by annual "engagement letters," which outlined the services to be performed by appellant in any given year....