[Cite as RPC Elec., Inc. v. Wintronics, Inc., 2012-Ohio-1202.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 97511




                              RPC ELECTRONICS, INC.
                                                            PLAINTIFF-APPELLANT

                                                      vs.


                                    WINTRONICS, INC.

                                                            DEFENDANT-APPELLEE




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                                Cuyahoga County Common Pleas Court
                                      Case No. CV-753980

        BEFORE: Boyle, P.J., S. Gallagher, J., and E. Gallagher, J.
        RELEASED AND JOURNALIZED:             March 22, 2012
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ATTORNEYS FOR APPELLANT

Brittney L. Cogan
Peter Turner
Meyers, Roman, Friedberg & Lewis
28601 Chagrin Boulevard
Suite 500
Cleveland, Ohio 44122


ATTORNEYS FOR APPELLEE

Matthew T. Fitzsimmons III
R. Christopher Yingling
Nicola, Gudbranson & Cooper, LLC
Republic Building, Suite 1400
25 West Prospect Avenue
Cleveland, Ohio 44115
                                           3

MARY J. BOYLE, P.J.:

       {¶1} This case came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1.

       {¶2} Plaintiff-appellant, RPC Electronics, Inc. (“Electronics”), appeals the trial

court’s decision granting defendant-appellee’s, Wintronics, Inc., Civ.R. 12(B)(6) motion

to dismiss.    We reverse the decision of the trial court and remand for further

proceedings.

                               Procedural History and Facts

       {¶3} In April 2011, Electronics commenced the underlying action against

Wintronics, asserting two counts for breach of contract.    With regard to the first count,

Electronics alleged that “[b]eginning in July 2006 to August 2006, [it] contracted with

[Wintronics] for the assembly of 90 printed circuit board assembly units (‘PCBA’).”      It

further alleged that, during this same time period, it sent Wintronics “purchase orders for

90 Printed Circuit Boards (‘PCBs’) plus labor, which involve [Wintronics] affixing

[Electronics’] pre-shipped component kits (‘Kits’) to PCBs acquired by [Wintronics]

from a third party company to create PCBAs.”         Electronics alleged that Wintronics

“affixed 90 of [Electronics’] Kits to 90 defective PCBs, thereby destroying 90 of

[Electronics’] Kits.”

       {¶4} As for the second count, Electronics alleged that Wintronics was

“responsible for the conversion of 5 PCBAs (from Omnia 5 boards to Omnia 6 boards)
                                            4

(‘Converted Boards’)” and the delivery of the Converted Boards to Electronics’

customer.   Electronics alleged that Wintronics failed to ship the Converted Boards to its

customer.

       {¶5} Based on these alleged breaches, Electronics sought $50,494.20 in

damages.

       {¶6} In response to the complaint, Wintronics filed a motion for a more definite

statement, requesting that Electronics attach the purchase orders to the complaint that

gave rise to the claims.    The trial court granted Wintronics’ motion, and Electronics

subsequently submitted invoices and purchase orders relating to the claims.    Wintronics

then moved to dismiss the complaint on the grounds that the purchase orders related to

the sale of goods, not services, and therefore the Uniform Commercial Code’s (“UCC”)

more restrictive four-year statute of limitations governed the contract.       Electronics

opposed the motion, arguing that it had stated a claim that which relief could be granted.

It argued that the contract was a mixed purpose contract for the sale of goods and services

and that, based on the purchase orders, the sale of services predominate the contract,

thereby invoking a fifteen-year statute of limitations.

       {¶7} The trial court ultimately granted Wintronics’ motion to dismiss, finding

that “[t]he underlying contract * * * between the two parties was for the sale of goods.”

The court found that the purpose of the contract “was for the defendant to supply

[plaintiff’s] customer with a working finished product” and therefore the claims were
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time barred under the statute of limitations.

       {¶8} Electronics appeals, raising a single assignment of error:

       {¶9} “The trial court erred as a matter of law in granting appellee’s motion to

dismiss.”

                                 Civ.R. 12(B)(6) Standard

       {¶10} “A motion to dismiss for failure to state a claim upon which relief can be

granted * * * tests the sufficiency of the complaint.” State ex rel. Hanson v. Guernsey

Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). A motion made

under Civ.R. 12(B)(6) only determines whether the pleader’s allegations set forth an

actionable claim; indeed, a court “may not use the motion to summarily review the merits

of the cause of action.”          Ward v. Graue, 12th Dist. No. CA2011-04-032,

2012-Ohio-760, ¶ 9.

       {¶11} In order to prevail on a Civ.R. 12(B)(6) motion, it must appear beyond

doubt from the complaint that the plaintiff can prove no set of facts entitling plaintiff to

recover.    Hester v. Dwivedi, 89 Ohio St.3d 575, 733 N.E.2d 1161 (2000). A court is

confined to the averments set forth in the complaint and cannot consider outside

evidentiary materials.   Id.; see also Greeley v. Miami Valley Maintenance Contrs. Inc.,

49 Ohio St.3d 228, 551 N.E.2d 981 (1990).         Moreover, a court must presume that all

factual allegations set forth in the complaint are true and must make all reasonable

inferences in favor of the nonmoving party.     Mitchell v. Lawson Milk Co., 40 Ohio St.3d
                                            6

190, 532 N.E.2d 753 (1988).      Therefore, “as long as there is a set of facts, consistent

with the plaintiff’s complaint, which would allow the plaintiff to recover, the court may

not grant a defendant’s motion to dismiss.”       York v. Ohio State Hwy. Patrol, 60 Ohio

St.3d 143, 145, 573 N.E.2d 1063 (1991).

       {¶12} We review the trial court’s decision granting a motion to dismiss under a de

novo standard of review.         Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79,

2004-Ohio-4362, 814 N.E.2d 44, ¶ 5.

       {¶13} The gravamen of Wintronics’ motion to dismiss was that Electronics’

claims were time barred because the predominant purpose of the underlying contract, as

evidenced by the purchase orders, was for the sale of goods.      While we recognize that

the trial court could consider the purchase orders that were submitted in response to

Wintronics’ Civ.R. 12(E) motion for a more definite statement, we do not find that the

purchase orders and invoices conclusively answer the question.     It is not apparent on the

face of these documents whether the predominant purpose of the parties’ underlying

contract was for the sale of goods or the sale of services.

       {¶14} Notably, Electronics alleged that it contracted with Wintronics “for the

assembly” of 90 PCBA units that involved Wintronics using Electronics’ pre-shipped

Kits to affix to another component for the purpose of creating PCBAs.           Electronics

further alleged that it contracted with Wintronics for the conversion of converter boards

to be delivered to Electronics’ customer.    These allegations support a theory of a breach
                                              7

of contract based on services.     But the resolution of this issue is not amenable to a

motion to dismiss. From the face of the complaint and the attached purchase orders, it is

not apparent that the predominant purpose of the contract is the sale of goods or the sale

of services.   Indeed, both parties contend that the purchase orders support its respective

position.   Electronics argues that the purchase orders and invoices reveal 80 percent of

services and 20 percent of goods. Conversely, Wintronics argues that the purchase

orders involve solely the sale of goods.   But the parties’s respective positions are merely

argument and conjecture and are not apparent from the face of the documents.

       {¶15} We are limited to reviewing the complaint and the documents submitted in

response to the motion for a more definite statement.     And based on these documents,

we find that Electronics has satisfied its burden to withstand a motion to dismiss.     “A

complaint may not be dismissed under Civ.R. 12(B)(6) for failing to comply with the

applicable statute of limitations unless the complaint on its face conclusively indicates

that the action is time-barred.”   Harris v. Pro-Lawn Landscaping, Inc., 8th Dist. No.

97302, 2010-Ohio-498, ¶ 7. Here, we cannot say that it is apparent that the predominant

purpose of the contract is the sale of goods, therefore invoking a four-year statute of

limitations under the UCC (as codified in R.C. 1302.01 et seq.).

       {¶16} And to the extent that both parties seek this court to make a determination

of the applicable statute of limitations, this issue is not ripe for review. Nor do we find

sufficient evidence in the record to do so.    We do note, however, that Wintronics bears
                                            8

the burden of establishing that the UCC applies. See Renaissance Technologies, Inc. v.

Speaker Components, Inc., 9th Dist. No. 21183, 2003-Ohio-98, ¶ 15. And whether a

transaction predominantly involves goods or services is ordinarily a question of fact for

the jury. Mecanique C.N.C., Inc. v. Durr Environmental, Inc., 304 F. Supp.2d 971

(S.D.Ohio 2004).     Under certain circumstances, however, the matter may be resolved by

the court as a matter of law under Civ.R. 56 if there is no factual dispute. But even then,

Wintronics bears the burden of demonstrating this and providing the court with evidence

to support its position.

       {¶17} Accordingly, having found that the trial court erred in granting Wintronics’

motion to dismiss, we sustain the sole assignment of error and remand for further

proceedings.

       {¶18} Judgment reversed and case remanded to the lower court for further

proceedings consistent with this opinion.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
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MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR
