[Cite as Maine v. Leonard Truck & Trailer, Inc., 2014-Ohio-5722.]
                           STATE OF OHIO, MAHONING COUNTY
                                 IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

WILLIAM E. MAINE, III,                                 )
                                                       )
        PLAINTIFF-APPELLANT,                           )
                                                       )            CASE NO. 13 MA 156
V.                                                     )
                                                       )                 OPINION
LEONARD TRUCK& TRAILER, INC.,                          )
                                                       )
        DEFENDANT-APPELLEE.                            )

CHARACTER OF PROCEEDINGS:                              Civil Appeal from Mahoning County
                                                       Court #4 of Mahoning County, Ohio
                                                       Case No. 12CVF635

JUDGMENT:                                              Reversed and Remanded.

APPEARANCES:
For Plaintiff-Appellant                                Attorney James E. Lanzo
                                                       4126 Youngstown-Poland Road
                                                       Youngstown, Ohio 44514

For Defendant-Appellee                                 Attorney Joshua R. Hiznay
                                                       1040 S. Commons Place, Suite 202
                                                       Youngstown, Ohio 44514




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                       Dated: December 26, 2014
[Cite as Maine v. Leonard Truck & Trailer, Inc., 2014-Ohio-5722.]
DONOFRIO, J.

         {¶1}   Plaintiff-appellant William E. Maine, III appeals a decision from the
Mahoning County Area Court No. 4 granting summary judgment in favor of
defendant-appellee Leonard Truck & Trailer, Inc. on his claims for negligence and
breach of contract.
         {¶2}   On September 26, 2011, appellant took his boat trailer containing his
boat to appellee for repair to the trailer. (Appellee’s Motion for Summary Judgment,
Glen Jones Aff. ¶ 4.) Appellee could not immediately start working on the trailer
because certain parts had to be ordered. (Jones Aff. ¶ 6.) As a result, appellant left
the trailer, along with the boat, with appellee for repairs. (Jones Aff. ¶ 6.) Appellee
alleges appellant signed a work order before work began. The work order stated:

                By signing above, I hereby release Leonard Truck & Trailer, Inc.
         from any liability for any damage or loss of any items left in vehicle or
         trailer while on the property of Leonard Truck & Trailer, 12800 Leonard
         Parkway, North Jackson, OH 44451. I agree that I am solely
         responsible for any and all damage or loss to personal property while
         on our premises and will not hold Leonard Truck & Trailer responsible
         for any loss or damage.

(Appellee’s Motion for Summary Judgment, Exhibit B.)
         {¶3}   On November 18, 2011, the work was completed on appellant’s trailer
and he signed the final work order detailing the work performed and the amount
owed. (Jones Aff. ¶ 8; Exhibit C.). Appellee billed appellant $1,584.17 for the work
performed. (Jones Aff. ¶ 9; Exhibit C.) That same day, appellant wrote out check
number 2509 for $1,584.17. (Jones Aff. ¶ 10.) Check number 2509 was given to
appellee for payment and in exchange appellant took his trailer and boat. (Jones Aff.
¶ 10.)
         {¶4}   Shortly after November 18, 2011, and before appellee attempted to
negotiate check number 2509, appellant placed a stop payment order on the check.
(Jones Aff. ¶ 11.) Appellant alleges that he stopped payment on the check upon
                                                                                -2-


discovering damage to his boat. Soon after placing a stop payment on check number
2509, appellant sent appellee a letter explaining that there were damages to the boat
totaling $732. Appellant’s letter stated, in part, “Enclosed is my check for full payment
for repairs on my trailer less the damages incurred on the boat which your employees
improperly stored * * *.” (Appellee’s Motion for Summary Judgment, Exhibit D.)
       {¶5}   Appellant then issued a new check number 2510 in the amount of
$852.17, reflecting the original price minus the alleged damages to the boat and
attached it to the letter. (Jones Aff. ¶ 12; Exhibits D & E.) Appellant wrote on the
check’s memo “FULL PAYMENT FOR TRAILER.” (Exhibit E; Admission #4.)
Appellee did not contest the balance of $732 deducted by appellant. Rather, appellee
negotiated check number 2510 for a payment of $852.17 and assumed the matter
was settled. (Jones Aff. ¶ 13.)
       {¶6}   On June 8, 2012, appellant filed a pro se small-claims complaint in the
trial court against appellee, claiming that appellee caused damage to his trailer when
it installed improper parts on the trailer. On July 30, 2012, pursuant to a motion filed
by appellee, the court transferred the matter from the small claims docket to the
regular docket. Appellant retained counsel and on October 1, 2012, appellant was
granted leave to file an amended complaint alleging breach of contract and
negligence for the improper repair of the trailer.
       {¶7}   On December 10, 2012, appellee filed its amended answer and
counterclaims for breach of contract, unjust enrichment, and theft. On January 14,
2013, appellee filed a motion for default judgment on its counterclaims. On January
28, 2013, the trial court overruled appellee’s motion for default judgment.
       {¶8}   On February 4, 2013, appellee filed a motion for summary judgment on
appellant’s claims of negligence and breach of contract on the basis that the claims
were barred by the doctrine of accord and satisfaction, and summary judgment on its
own claims. Additionally, if the court did find an accord and satisfaction applied to
appellant’s claims, appellee requested a hearing on attorney’s fees.
                                                                               -3-


       {¶9}   In its motion for summary judgment, appellee asserted that the facts in
this case are largely uncontested. Appellee supported its motion with: the affidavit of
Chuck Jones, affidavit of Glen Jones, the original work order, and the final work order
signed by appellant.
       {¶10} On April 3, 2013, appellant responded to appellee’s motion for
summary judgment contending that several genuine issues of material fact existed
regarding the damage to the trailer. He did not submit sworn evidence to oppose
appellee’s motion for summary judgment.
       {¶11} On April 24, 2013, the matter proceeded to a hearing before a
magistrate. The magistrate found that a genuine issue of material fact existed as to
what appellant intended to settle when he wrote out check number 2510 for $852.17.
Thus, the magistrate overruled appellee’s motion for summary judgment based on
the conclusion that a genuine issue of material fact exists.
       {¶12} On April 29, 2013, appellee filed objections to the magistrate’s
decisions contending that no genuine issue of material fact existed as to what
appellant intended to settle when he issued check number 2510 for $852.17.
Appellee argued that appellant failed to submit sworn evidence to oppose summary
judgment and relied only on his opposition brief concerning what his intentions were.
Further, appellee argued that the magistrate erred because appellant admitted in his
answer to appellee’s counterclaims that check number 2510 for $852.17 was for the
damages caused in repairing the boat trailer. Finally, appellee argued that the repair
work that was performed on the trailer and the alleged trailer damages to the trailer is
the very dispute that was satisfied when appellant wrote of the check for $852.17 and
indicated on the check “full payment for trailer.” Thus, appellee contended the
magistrate erred in finding that there was a genuine issue of material fact. As such,
appellee contended it was entitled to summary judgment as a matter of law.
       {¶13} On June 19, 2013, the trial court overruled the magistrate’s decision
without further explanation and granted appellee’s motion for summary judgment.
This appeal follows.
                                                                               -4-


       {¶14} Appellant raises a single assignment of error, which states:

              THE TRIAL COURT ERRED WHEN IT OVERRULED THE
       DECISION OF THE MAGISTRATE AND GRANTED APPELLEE’S
       MOTION FOR SUMMARY JUDGMENT.

       {¶15} An appellate court reviews a trial court’s summary judgment decision de
novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan
v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5. A motion for
summary judgment is properly granted if the court, upon viewing the evidence in a
light most favorable to the nonmoving party, determines that: (1) there are no
genuine issues as to any material facts; (2) the movant is entitled to judgment as a
matter of law; and (3) the evidence is such that reasonable minds can come to but
one conclusion and that conclusion is adverse to the opposing party. Civ.R. 56(C);
Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10.
       {¶16} “[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 on a material element of the
nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264
(1996). The trial court’s decision must be based upon “the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence, and
written stipulations of fact, if any, timely filed in the action.” Civ.R. 56(C). The
nonmoving party has the reciprocal burden of specificity and cannot rest on the mere
allegations or denials in the pleadings. Id. at 293.
       {¶17} In Dresher, the Ohio Supreme Court held that a party who moves for
summary judgment need not support its motion with affidavits provided that the party
does not bear the burden of proof on the issues contained in the motion. Dresher at
277. Further, there is no requirement in Civ.R. 56 that any party submit affidavits to
support a motion for summary judgment. See, e.g., Civ.R. 56(A) and (B). Id.
However, there is a requirement that a moving party, in support of a summary
                                                                             -5-


judgment motion, specifically point to something in the record that comports with the
evidentiary materials set forth in Civ.R. 56(C). Id.
       {¶18} In support of its motion for summary judgment, appellee submitted the
affidavit of Chuck Jones and Glen Jones. The affidavits denied any alleged damage
done to appellee’s boat and that appellant still owed the balance of the original
invoice. Additionally, appellee attached a copy of the signed work order and a copy of
the letter attached with check number 2510 to its motion for summary judgment.
       {¶19} In response, appellant did not offer evidence to rebut appellee’s motion
or rebut appellee’s submitted affidavits. As such, the only evidence before the trial
court was the evidence submitted by appellee. Here, appellant instead attempted to
illustrate how the facts as they were presented by appellee reflected that there
existed a genuine issue of material fact.
       {¶20} Here, the substantive law of the issue being litigated is the doctrine of
accord and satisfaction. An accord and satisfaction is a method of discharging a
contract or settling a cause of action arising either from a contract or a tort. Kirk
Williams Co., Inc. v. Six Industries, Inc., 11 Ohio App.3d 152, 153, 463 N.E.2d 1266
(2d Dist.1983). The Ohio Supreme Court has held that a party may raise the doctrine
of accord and satisfaction as an affirmative defense to a claim for money damages.
Allen v. R.G. Indus. Supply, 66 Ohio St.3d 229, 231, 611 N.E.2d 794 (1993). If a
party against whom a claim for damages is made can prove accord and satisfaction,
that party’s debt is discharged by the operation of law.
       {¶21} An accord and satisfaction contains four elements: (1) proper subject
matter; (2) competent parties; (3) mutual assent; and (4) consideration. State ex rel.
Shady Acres Nursing Home, Inc. v. Rhodes, 7 Ohio St.3d 7, 8, 455 N.E.2d 489
(1983). “As an accord and satisfaction is the result of an agreement between the
parties, it cannot be consummated unless the creditor accepts the lesser amount with
the intention that it constitutes a settlement of the claim.” Id.
       {¶22} An accord and satisfaction is the result of an agreement between the
parties, and this agreement, like all others, must be consummated by a meeting of
                                                                                  -6-


the minds of the parties. Warner Storage, Inc. v. Systemation, Inc., 64 Ohio App.3d 1,
580 N.E.2d 490 (8th Dist.1989). An effective assent cannot be given and a meeting
of the minds cannot be achieved unless the parties have knowledge of facts which
are material to the agreement. Kirk Williams Co., Inc. at 154. Additionally, an
agreement intended as an accord and satisfaction of certain claims may be valid as
to those claims known to both parties at the time of the execution, notwithstanding
that an additional claim was discovered after an accord had been made and
executed in satisfaction. Id. citing Brient v. Cupid Ice Cream Co., 47 Ohio App. 283,
191 N.E. 812 (1st Dist.1933).
         {¶23} A trial court may decide a question of accord and satisfaction when the
facts are clear and undisputed. Lightbody v. Rust, 8th Dist. No. 80927, 2003-Ohio-
3937, ¶ 22. However, “‘[w]here the negotiations surrounding an alleged accord and
satisfaction permit conflicting deductions, they are to be resolved by the trier of fact. *
* * Moreover, conflicting facts indicate the absence of a meeting of the minds of the
parties regarding the alleged accord and satisfaction present a factual issue to be
decided by a jury.” Id., quoting Warner Storage v. Systemation, 64 Ohio App.3d 1, 7,
580 N.E.2d 490 (8th Dist.1989).
         {¶24} In this case, appellant admits that an accord and satisfaction existed
between himself and appellee regarding the amount appellant owed for the repair of
the trailer. Also, appellant admits that an accord and satisfaction existed concerning
the amount appellee owed for damage to his boat. However, appellant argues that a
genuine issue of material fact remained as to whether there was an accord and
satisfaction between the parties relating to the alleged damage to the trailer.
Appellant contends check number 2510 was meant for trailer repairs only and not for
the trailer damage alleged to have resulted from appellee’s installation of improper
parts.
         {¶25} Appellant contends that this was clear from the letter he sent to
appellee which stated, “Enclosed is my check for repairs on my trailer less the
                                                                                -7-


damages incurred on the boat which your employees improperly stored.” (Appellee’s
Motion for Summary Judgment, Exhibit D.)
       {¶26} Moreover, appellant maintains that an offer and acceptance did not
exist as to the damage to his trailer. Also, he argues that nothing was carried out nor
was there any type of consideration. As a result, appellant argues that appellee
cannot meet three of the elements needed in order to show an accord and
satisfaction existed regarding the damage to the trailer.
       {¶27} The central issue of this case is whether mutual assent existed between
appellant and appellee to allow application of accord and satisfaction. Appellee
argues that the letter sent along with check number 2510 issued by appellant
amounts to an accord and satisfaction as to all disputes between the parties.
       {¶28} Appellee contends that the memo on appellant’s check shows the
existence of an accord and satisfaction. However, the Ohio Supreme Court has held
that as a matter of law, the printed statement on the face of a check is insufficient to
constitute express notice to the creditor that it was offered in exchange for full
release:

              [F]or the check alone to be sufficient it would have to contain
       express references to the date of the alleged tort, an explicit statement
       that it is the final payment to be made by the tortfeasor, and a reference
       to the terms appearing on the front of the check printed above the
       signature line(s) on the back of the check. This information is necessary
       to ensure that the injured party knows exactly what he or she is giving
       up in exchange for the payment.

Allen v. R.G. Indus. Supply, 66 Ohio St.3d 229, 235, 611 N.E.2d 794 (1993).
       {¶29} Other cases have looked at whether notations on a check were
sufficient to create an accord and satisfaction. In Peroni, the case involved
insufficient language printed on the face of the check, as a memo, with no notation
on the back of the check to advise an endorser of those terms. Peroni v. DiBacco &
                                                                                 -8-


Father, Inc., 8th Dist. No. 68438, 1995 WL 614508 (Oct. 19, 1995). There, the Eighth
District applied Allen stating, “[a]s a matter of law, the printed statement on the face
of the check is insufficient to constitute express notice that it was offered in exchange
for a full release.” Id., citing Allen at 235. In conformity with Allen, the memo notation
printed on the face of DiBacco’s check did not constitute notice to Peroni of
DiBacco’s intent to fully satisfy the obligation. Therefore, cashing the check did not
constitute an accord and satisfaction and did not settle all claims between the parties.
Id.
       {¶30} Another case is Warner Storage, Inc. v. Systemation, Inc., 64 Ohio
App.3d 1, 580 N.E.2d 490 (8th Dist.1989). In Warner, the court found that a check
bearing the phrase “Final Settlement” did not constitute the offer, but was merely a
memo regarding what had occurred during the negotiations at the meeting which
culminated in the agreement or accord. Id. at 4. There, a customer brought action
against a computer system supplier for breach of contract and breach of warranty.
The computer system supplier filed a motion for summary judgment, contending that
the $15,000 payment constituted an accord and satisfaction between the parties.
However, the Eighth District held that when negotiations surrounding an alleged
accord and satisfaction permit conflicting deductions, they must be resolved by the
trier of fact. Id. Therefore, the court precluded summary judgment.
       {¶31} Similar to Peroni, in the present case, the vague language of the memo
on the check alone falls short of the information required by Allen. The letter’s
statement “full payment for trailer” is simply not sufficient in the absence of more
explicit words of reference to establish appellee had reasonable notice that the check
was to be in full satisfaction of the debt. The vague language of appellant’s letter
does not specify the check was for the trailer damage. Rather, the letter explicitly
indicated that the check was for trailer repair and boat damage. Moreover, the word
repair is never included in appellant’s letter accompanying check number 2510. Thus,
the memo on the check cannot be used to sufficiently determine accord and
                                                                                 -9-


satisfaction, because the vague language on the check’s memo does not indicate
both parties had knowledge of the material facts of the agreement.
      {¶32} The present case and Warner are factually similar. The conflicting
interpretation of appellant’s memo on check number 2510 along with the attached
letter, present a genuine issue of material fact for a jury to determine. At issue is
whether appellant’s $852.17 payment constitutes a full release of all claims that
appellant had against appellee, or whether it represented a release only for
appellee’s $1,581.17 invoice for the original work performed. Therefore, reasonable
minds could differ as to whether there was an accord and satisfaction of all disputes
between the parties, or whether a meeting of the minds occurred between both
parties. Thus, the trial court awarding summary judgment was improper.
      {¶33} In sum, a genuine issue of material fact exists. The check and letter
were insufficient to constitute the mutual assent required between the parties to
establish an accord and satisfaction existed relating to the alleged damage to the
trailer. As a result, these conflicting facts indicate the absence of a meeting of the
minds. Therefore, the trial court improperly awarded summary judgment in favor of
appellee.
      {¶34} Accordingly, appellant’s sole assignment of error has merit.
      {¶35} The trial court’s judgment is reversed and the matter is remanded for
further proceedings according to law and consistent with this court’s opinion.

Waite, J., concurs.

DeGenaro, P.J., dissents.
