Kenneth S. Clark and Jennifer v. Clark v. Wheeler & Clevenger Oil Co.
| Decision Date | 28 June 2000 |
| Docket Number | 00-LW-3538,99CA18 |
| Parties | KENNETH S. CLARK AND JENNIFER V. CLARK, Plaintiffs-Appellants v. WHEELER & CLEVENGER OIL CO., Defendant-Appellee Case |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANTS: Norman L. Folwell, 215 Second Street Marietta, Ohio 45750.
COUNSEL FOR APPELLEE: Paul T. Theisen, THEISEN, BROCK, FRYE, ERB & LEEPER CO., P.O. Box 739, 424 Second Street, Marietta, Ohio 45750; Samuel L. Perkins, Richard P. Johnson, PERKINS LAW GROUP, 300 East Main Street, Suite 405, Lexington, Kentucky 40507.
DECISION
Appellants, Kenneth S. Clark and Jennifer V. Clark [hereinafter Clarks], appeal the decision of the Washington County Court of Common Pleas, granting judgment on the pleadings to the appellee, Wheeler & Clevenger Oil Co., Inc. [hereinafter W&C Oil]. We reverse.
In 1994, the Clarks became operators of a gasoline service station on Pike Street in Marietta, Ohio, owned by Robert L Baker and Pauline M. Baker [hereinafter Bakers]. On September 1, 1994, the Clarks entered into a "Dealer's Agreement" with W&C Oil to be an exclusive Sunoco dealership. Shortly thereafter, also in September 1994, the Bakers granted W&C Oil the exclusive right to deliver gasoline and fuel oil products to this Pike Street service station. In March 1995, the dealership became an Exxon distributor. At about the same time, W&C Oil began to charge the Clarks an extra one and four-tenths cent per gallon surcharge on each gallon of gas delivered to them. This extra charge later increased to as much as four and eight-tenths cents per gallon. In addition, W&C Oil began to charge rent for the Exxon signage installed at that station by W&C Oil. In February 1997, the Clarks abandoned the operation of the station to the Bakers, who began to operate the station. On November 17, 1997, the Bakers and the Clarks sued W&C Oil in the Washington County Court of Common Pleas, seeking damages for the gasoline overcharges, sign rental charges, and the loss of profits as the result of the overcharges. Their complaint included a claim for punitive damages. W&C Oil counter-claimed for accounts claimed past due, for breach of the Dealer's Agreement between it and the Clarks, breach of an agreement between it and the Bakers, and for damages to its business reputation.
On February 10, 1998, W&C Oil moved for judgment on the pleadings against the Clarks. W&C Oil claimed that the Dealer's Agreement between it and the Clarks contained a limitation clause that required any claim under the contract to be filed within six months after that claim arose. The Clarks admitted, in their complaint, to ending their operation of the station in February 1997. Therefore, argues W&C Oil, the Clarks would have been required to file any claim in October 1997 or be time barred by this six month clause. Hence, concluded W&C Oil the November 17, 1997 complaint filed by the Clarks must be dismissed as untimely. The trial court granted W&C Oil's motion on March 16, 1998, and the Clarks filed their timely appeal.
The March 16, 1998 judgment entry did not resolve the claims raised by the Bakers or any of the counterclaims raised by W&C Oil. We found, therefore, that this judgment entry was not a "final appealable order" under Civ.R. 54. For that reason, we dismissed the appeal. See Clark v. Wheeler and Clevenger Oil Co. (Dec. 4, 1998), Washington App. No. 98CA 17, unreported. On March 10, 1999, the trial court supplemented its March 16, 1998 order by finding that "there is no just reason for delay" under Civ.R. 54(B). The Clarks again appealed from that judgment and order of the trial court dismissing their action on the pleadings. Appellants raise a single assignment of error for our review:
THE TRIAL COURT ERRED IN GRANTING THE MOTION OF THE DEFENDANT-APPELLEE FOR JUDGMENT ON THE PLEADINGS (DECISION OF TRIAL COURT).OPINION
We must first identify the applicable standard of review. Appellee W&C Oil urges us to apply an abuse of discretion standard, offering as authority S.E.R.B. v. Pickaway D.H.S. (1995), 108 Ohio App.3d 322, 670 N.E.2d 1010, and Gingo v. Ohio State Medical Bd. (1989), 56 Ohio App.3d 111, 564 N.E.2d 1096. Both cases cited arc appeals from a common pleas court review of an administrative ruling. Neither case cited by appellee as authority for its position is persuasive and both are clearly distinguishable from the present matter. The matter before us is a contract dispute, brought originally in the Washington County Court of Common Pleas, with no prior administrative hearing or ruling being involved.
State ex rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 570, 664 N.E.2d 931, 936. Thus, Civ.R. 12(C) requires the trial court to determine that no material factual issues exist and that the movant is entitled to judgment as a matter of law. See Burnside v. Leimbach (1991), 71 Ohio App.3d 399, 403, 594 N.E.2d 60, 62. Our standard of review, therefore, is de novo, which requires us to independently review the judgment to determine if it was properly granted as a matter of law. Midwest, supra. See Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 166, 297 N.E.2d 113, 117; Becker v. McAninch (Dec. 2, 1998), Ross App. No. 98CA2450, unreported.
Unlike a Civ.R. 12(B)(6) motion, the trial court may consider the complaint, as well as the answer and any counter-claims or cross claims, in reaching its decision on a motion under Civ.R. 12(C). Midwest, supra. In ruling on a Civ.R 12(C) motion, the pleadings must be construed liberally and in a light most favorable to the party against whom the motion is made, along with reasonable inferences drawn therefrom. See Burnside v. Leimbach, 71 Ohio App.3d at 402, 594 N.E.2d at 62; Case Western Reserve Univ. v. Friedman (1986), 33 Ohio App.3d 347, 348, 515 N.E.2d 1004, 1005. However, the trial court may consider only the content of the pleadings and may not consider any evidentiary materials. See Burnside and Peterson, supra, and Hughes v. Robinson Memorial Portage Cty. Hosp. (1984), 16 Ohio App.3d 80, 474 N.E.2d 638. A trial court may not consider material outside the pleadings even where that material would establish that the court lacked jurisdiction over the matter. Pollack v. Watts (Aug. 10, 1998), Fairfield App. No. 97CA0084, unreported.
The Clarks, in their complaint, claimed a breach of a contractual agreement entered into between the Bakers, W&C Oil, and a third entity, M.C. Development Company [hereinafter Baker Contract]. They attached a copy of this agreement to the complaint. W&C Oil, in its answer and counterclaim attached a copy of a different contract, the Dealer's Agreement executed by W&C Oil and the Clarks [hereinafter Clark Contract]. W&C Oil cited to the Clark Contract, specifically the "limitations" clause of that contract, and argued that this clause barred the action by the Clarks by its terms. The "limitations" clause states: "* * * no civil or equitable action under the provisions of any Federal or State Law by either party against the other shall be brought unless instituted within six (6) months of the date upon which the transaction is based, * * *." W&C Oil argues that no material issue of fact exists. Therefore, concludes W&C Oil, it is entitled to judgment on the face of the pleadings submitted by the parties.
In their answer to the W&C Oil counterclaim, however, the Clarks argued that the Clark Contract was rendered invalid and was of no further force and effect once the parties began dealing with Exxon, instead of Sunoco, in March 1995. The Clarks also noted that the Clark Contract contained no termination date, although the form agreement had blanks for the entry of such a date. Therefore, argue the Clarks, the contract was incomplete without this termination date and is unenforceable on this basis as well.
The statutory time limit for bringing an action in contract is fifteen years. R.C. 2305.06. However, Ohio law recognizes that the parties may agree to a shorter time limit. Universal Windows & Doors, Inc. v. Eagle Window & Door, Inc. (1996),116 Ohio App.3d 692, 689 N.E.2d 56. Following the rule set forth in Burnside, supra, regarding limitation of what a court may consider in ruling on a Civ.R. 12(C) motion, the trial court was permitted to consider only the specific contract clause set forth in the W&C Oil answer, but not the actual contract, in ruling on the motion for judgment on the pleadings. Since the complaint did not address this contract, but instead relied upon the Baker Contract to argue a breach, the Clarks did not directly address this issue. The Clarks admit in their complaint that they returned the business to the Bakers in February 1997, more than six months before they filed their action. On the face of the pleadings, and on the pleadings alone, this contract provision might appear to bar any action by the Clarks.
However, by challenging the continued validity of the Clark Contract, the Clarks raised a question of material fact that could not be resolved without further examination of that agreement. Therefore, the trial court could not properly grant judgment on the pleadings...
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