[Cite as Sunesis Trucking Co., Inc. v. Thistledown Racetrack, L.L.C., 2014-Ohio-3333.]



                      [Please see vacated opinion at 2014-Ohio-2411.]

                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100908



                 SUNESIS TRUCKING COMPANY, INC.
                                                            PLAINTIFF-APPELLANT

                                                      vs.

          THISTLEDOWN RACETRACK, L.L.C., ET AL.
                                                            DEFENDANTS-APPELLEES



                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-11-770229

        BEFORE: Keough, J., Rocco, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: July 31, 2014
ATTORNEYS FOR APPELLANT

Mark L. Wakefield
James A. Lowe
Lowe, Eklund, Wakefield & Mulvihill
1660 W. Second Street
610 Skylight Office
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEES

Jan L. Roller
Davis & Young
1200 Fifth Third Center
600 Superior Avenue, East
Cleveland, Ohio 44114
ON RECONSIDERATION1

KATHLEEN ANN KEOUGH, J.:

       {¶1} Plaintiff-appellant, Sunesis Trucking Company, Inc. (“Sunesis”), appeals the

following decisions by the trial court: (1) The April 23, 21013 denial of Sunesis’s motion

for summary judgment on liability, (2) The April 23, 2013 granting partial summary

judgment in favor of defendants-appellees, Thistledown Racetrack, L.L.C., Harrah’s

Entertainment, and Caesars Entertainment Operating Company, Inc., and (3) The January

9, 2014 journal entry dismissing the case with prejudice. For the reasons that follow, we

reverse and remand.

       {¶2} In June 1994, Randy Hood, owner of Sunesis, entered into an agreement with

Carat Company, Inc. d.b.a. Thistledown Racecourse, for the removal of straw and manure

from the horse stalls located at Thistledown.             Sunesis would haul and sell the

straw-manure to mushroom farms in Pennsylvania for profit. According to the terms of

the contract, Thistledown did not pay Sunesis for the removal of the manure, but Sunesis

would pay Thistledown to supply the labor to operate the roll-off trucks and for

eliminating all other stall bedding material that was not straw.            The agreement was

renewed in 1995 with some modifications.

       {¶3} In February 1999 (“1999 contract”), Sunesis and Thistledown, Inc. d.b.a.


        The original decision in this appeal, Sunesis Trucking Co., Inc. v. Thistledown Racetrack,
       1


LLC, 8th Dist. Cuyahoga No. 100908, 2014-Ohio-2411, released June 5, 2014, is hereby vacated.
This opinion, issued upon reconsideration, is the court’s journalized decision in this appeal. See
App.R. 22(C); see also S.Ct.Prac.R. 7.01.
Thistledown Racecourse (“Thistledown”), entered into an agreement similar to that stated

above. The contract again provided that Sunesis would haul straw and manure from

Thistledown without compensation.         The contract provided for ancillary fees and

payments associated with the use of shavings as horse bedding materials, which are not

relevant to this appeal.

       {¶4} Section “III” of the 1999 contract explained the terms of termination and

renewal.

       This agreement shall commence on February 1, 1999, and shall remain in

       full force and effect through December 31, 2002, at which time it will

       terminate; provided however, that unless either party gives the other at least

       six (6) month’s written notice that it does not desire to renew this contract,

       then this contract shall automatically renew at the end of the herein contract

       period under the exact same terms and conditions of this contract. Provided

       further, however, that if Thistledown does advise Sunesis as aforesaid that it

       does not desire to renew this contract at the expiration of the herein contract

       period, Sunesis shall have the right to match any proposals then offered by

       its competitors, and if Sunesis does so, Sunesis shall be awarded a new

       contract[.]

       {¶5} On August 14, 2009, Hood sent David Ellsworth (“Ellsworth”), general

manger of Thistledown, a letter regarding Sunesis’s written request for payment for waste

removal.
        As per our meeting in July, I am writing to advise you and Thistledown that
        Sunesis Trucking will no longer be able to haul the manure under the current
        terms. * * * This is why I was taken back when you advised me that you
        could not work with me at all with paying a fee.

        Due to [t]his and the fact that Thistledown is outside of our last contract,
        accept this as notice that Sunesis Trucking will haul your manure at the
        following fees. Effective immediately.

        $400 per load of manure hauled.
        This includes labor and the use of boxes and our loader to remove manure.

        {¶6} By verbal agreement between Ellsworth and Hood, Thistledown paid Sunesis

a “negotiated price” of $250 per load, beginning on August 25, 2009. Ellsworth testified

at deposition that he felt that Thistledown had no choice but to pay Sunesis because they

were in the middle of a racing season, which typically begins in April and ends in

November. Furthermore and more importantly, because Thistledown was in bankruptcy

proceedings, Ellsworth felt that he would not be able to enter into a new contract with

another hauling company during this time. However, these concerns were not relayed to

Hood.

        {¶7} Hood testified at deposition that even if Thistledown refused to pay, Sunesis

still would have hauled the manure because it was under contract to perform, and he

needed the straw manure to sell to the mushroom farms.

        {¶8} On December 11, 2009, Sunesis sent Thistledown a fax indicating its account

was past due. The outstanding invoices were from September 28, 2009 to December 7,

2009, for a total amount due and owing of $23,000.            This amount was paid by

Thistledown.
       {¶9}   In April 2010 at the start of the racing season, Hood submitted to

Thistledown an “Addendum to Contract” that memorialized the earlier verbal agreement

that Thistledown would pay Sunesis $250 for each load of manure it hauled from

Thistledown. The addendum was never signed by Ellsworth or any other authorized

person from Thistledown.

       {¶10} On June 28, 2010, Harrah’s Entertainment, Inc. sent Sunesis a letter advising

that Harrah’s had acquired the assets of Thistledown Racetrack through the bankruptcy

proceeding. In response, Hood sent Harrah’s a letter advising it of the hauling contract

and addendum whereby Thistledown was to pay Sunesis $250 per load of hauled manure.

It further stated that $21,250 was owed by Thistledown for hauling services. Hood

testified that this amount was subsequently paid.

       {¶11} On August 13, 2010, Ellsworth sent Hood a letter advising him there was a

liability concern regarding some of the manure bins that were in disrepair and had caused

injury. In the letter, Ellsworth reminded Hood that pursuant to the terms of the 1999

contract, Sunesis was liable for any injury as a result of any environmental risks.

Additionally, Ellsworth reiterated: “As you know, Thistledown recently agreed to an

increase in haul rates at your urgent request. While that agreement thus far is verbal, we

have kept our word and honored it without question.”

       {¶12} Thereafter on October 4, 2010, and after paying Sunesis for a majority of the

racing season, Thistledown sent Sunesis a letter rejecting the April 2010 proposed

addendum to the 1999 contract. Specifically, the letter stated:
       We were not anticipating this sort of charge, which is significant considering
       that historically, we were not charged for these removal services and,
       subsequently have not budgeted for the same. While we can appreciate the
       economic hardships that have impacted everyone, we simply cannot afford to
       pay the amount requested in the proposed Addendum.

       Consequently, we would like to counter your proposal, and offer the
       following as potential options to discuss:

       Thistledown will pay 50% of your proposed fee, or One Hundred Twenty
       Five Dollars ($125.00) per load for each and every load Sunesis removes
       from Thistledown for the remainder of the 2010 season, retroactive to
       September 1, 2010.

       Once you have had an opportunity to consider the proposed counter options
       above, we would like to schedule a meeting to discuss same and finalize for
       a rate that is palatable to both Thistledown and Sunesis.

The letter was silent as to any subsequent racing seasons.

       {¶13} In response, Hood sent Ellsworth a letter on October 12, 2010 expressing

some confusion about the letter and explaining why the rate for hauling was necessary:

       The above factors, along with the cost of doing business, is what prompted
       me to request $350 per load last year. After my request, you and I agreed
       last summer to amend our agreement and that Thistledown would commence
       paying Sunesis $250 per load. Thistledown has been paying that amount for
       over a year now. The addendum that you mentioned in your letter was just
       a follow-up to our conversation and was sent upon your request because you
       said that you wanted to renegotiate the per load hauling fee. Since we’ve
       started a new contract term, I would like to have any potential concerns
       resolved before racing begins. Rather than discussing that by letters, I think
       that it would be better if I came up to Thistledown so that we can discuss our
       ongoing agreement.

       {¶14} In a letter to Ellsworth dated November 10, 2010, Hood referenced their

meeting the week prior and stated that he could not agree to the counter-proposal, but

suggested a scaled-payment schedule for the unpaid amounts from the 2010 racing season.
 In the letter, Hood requested,

       If this is agreeable to Thistledown’s [sic] and yourself please make the

       adjustments accordingly and forward payment from September and October.

        Just as a note, as I was looking at my file the original amount that I

       proposed was $350.00 per load[.] You then submitted a letter asking me to

       cut it to $250.00 per load and I did. I will work on a proposal for next year

       so that we can have this settled way before the season starts.

Ellsworth testified at deposition that he agreed to this scaled-payment schedule and that all

payments were made to Sunesis.

       {¶15} In a January 11, 2011 letter, Thistledown terminated the contract “effective

immediately.”

       Harrah’s Ohio Acquisition Company, LLC d/b/a Thistledown
       (“Thistledown”) is hereby placing you on written notice that we will
       discontinue the use of Sunesis Trucking, Inc.’s (“Sunesis”) waste removal
       and hauling services pursuant to that certain Agreement between
       Thistledown and Sunesis, dated February 1, 1999 (the “Agreement”).
       Pursuant to an October 4, 2010 correspondence from Thistledown addressed
       to you, Thistledown agreed to utilize Sunesis’s waste removal/hauling
       services for the remainder of the 2010 season.

       We are now providing this letter as a courtesy notice to you that, effective
       immediately, we will discontinue utilizing Sunesis’s services under the
       Agreement.
       {¶16} Hood responded by letter dated January 26, 2011, explaining that because

Thistledown did not give notice of terminating the contract as required, the contract

automatically renewed. Additionally, Hood explained that he was surprised about the

termination considering the communications between he and Ellsworth about the hauling
rates the year prior.

       {¶17} On February 15, 2011, Ellsworth sent Hood a final correspondence

explaining that Thistledown had complied with the 1999 contract’s termination clause,

because the October 4, 2010 letter put Sunesis on notice that Thistledown was terminating

the contract for the next racing season, effective April 4, 2011. Even though Thistledown

terminated the contract, Ellsworth offered Hood the right of last refusal as provided under

the contract to provide waste removal services.

       {¶18} Hood responded by letter dated February 24, 2011, explaining Sunesis’s

interpretation of the contract’s termination clause and also inquiring about the bid that

Thistledown received for waste removal services. When Hood did not hear back from

Thistledown, he sent another letter dated March 21, 2011, again inquiring about the

contract and affirmatively stating that Sunesis was ready to perform under the 1999

contract for the 2011 racing season. No response was received from Thistledown.

       {¶19} Although the parties disagree as to when the contract was set to renew —

Sunesis contends January 1, 2011 and Thistledown contends October 31, 2010 — the

parties are not in dispute that the contract had automatically renewed prior to the time of

Thistledown’s January 11, 2011 letter, and that no party gave the requisite six-month

notice of termination as required. Accordingly, the contract renewed under the original

terms and conditions, which included the original term that Sunesis would not receive

payment from Thistledown for hauling the manure.

       {¶20} In February 2012, through a second amended complaint, Sunesis brought suit
against Thistledown alleging breach of the February 1999 contract. Thistledown filed an

answer and amended counterclaim for damages alleging that Sunesis had breached the

1999 contract. Both parties moved for summary judgment on the issue of liability only.

       {¶21} In granting Thistledown’s motion for partial summary judgment the trial

court held:

       The court finds that plaintiff gave notice to the defendant on August 14,
       2009, that the plaintiff did not desire to renew the 1999 contract. Therefore,
       notice having been given by the plaintiff, plaintiff cannot allege that
       defendant breached the contract by failing to give notice within six months
       of the end of the contract.

       {¶22} The trial court further denied Sunesis’s motion for summary judgment. As a

result, Thistledown dismissed its amended counterclaim with prejudice.

       {¶23} Sunesis now appeals the trial court’s decision, raising as its sole assignment

of error that the trial court erred in granting defendant-appellee Thistledown’s motion for

summary judgment because a genuine issue of material fact exists as to whether Sunesis’s

August 14, 2009 letter was merely an addendum proposal as opposed to a definitive

statement of non-renewal of the contract.2

       {¶24} Civ.R. 56(C) provides that summary judgment is appropriate when (1) there

is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter

of law, and (3) after construing the evidence most favorably for the party against whom the


        Sunesis raises no assignment of error challenging the trial court’s denial of its motion for
       2


summary judgment or the trial court’s decision dismissing the case with prejudice. Accordingly,
those decisions raised in the notice of appeal are deemed abandoned in this appeal. See App.R. 12
and 16.
motion is made, reasonable minds can only reach a conclusion that is adverse to the

nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370,

1998-Ohio-389, 696 N.E.2d 201; Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327,

364 N.E.2d 267 (1977). We review the trial court’s judgment de novo, using the same

standard that the trial court applies under Civ.R. 56(C). Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Accordingly, we stand in the

shoes of the trial court and conduct an independent review of the record.

       {¶25} Thistledown moved for partial summary judgment contending that Sunesis’s

August 14, 2009 letter was an anticipatory repudiation of the 1999 contract and, therefore,

Thistledown was not obligated to follow the terms of the 1999 contract by giving the

requisite six-month notice of termination. Sunesis moved for partial summary judgment

contending that because Thistledown conceded that it did not provide the requisite

six-month notice of termination of the 1999 contract, it was entitled to judgment as a

matter of law.

       {¶26} Contrary to the trial court’s reasoning in granting Thistledown’s partial

summary judgment, a plain reading of the August 14, 2009 letter does not evidence that

Sunesis was giving Thistledown notice of termination. Nowhere in the letter does it state

that it was terminating the contract and that the contract would not automatically renew at

the expiration of its term.

       {¶27} Moreover, we disagree with Thistledown’s position that the subsequent

verbal agreement to pay for hauling services was a new contract and, therefore, the trial
court’s decision was correct.        The correspondence exchanged between Hood and

Ellsworth clearly demonstrate that both Sunesis and Thistledown believed they were still

operating under the 1999 contract.

       {¶28} Accordingly, the sole underlying issue in this appeal is whether Sunesis’s

August 14, 2009 letter establishes an anticipatory breach of the contract, thereby, excusing

Thistledown from its obligations under the contract.

       {¶29} Where one party to a contract refuses to perform under the terms of the

contract, an anticipatory repudiation is said to occur. Blake Homes, Ltd. v. FirstEnergy

Corp., 173 Ohio App.3d 230, 2007-Ohio-4606, 877 N.E.2d 1041 (6th Dist.).              “‘An

anticipatory breach of contract by a promisor is a repudiation of the promisor’s contractual

duty before the time fixed for performance has arrived.’” McDonald v. Bedford Datsun,

59 Ohio App.3d 38, 40, 570 N.E.2d 299 (8th Dist.1989), quoting Smith v. Sloss

Marblehead Lime Co., 57 Ohio St. 518, 49 N.E. 695 (1898).

       {¶30} To prevail on a claim of anticipatory breach of contract, a plaintiff must

establish that there was a contract containing some duty of performance not yet due, and

that by word or deed, the defendant refused future performance, causing damage to the

plaintiff. Metz v. Am. Elec. Power Co., Inc., 172 Ohio App.3d 800, 2007-Ohio-3520, 877

N.E.2d 316, ¶ 35 (10th Dist.).

       {¶31} However, an anticipatory breach of contract must be an unequivocal

repudiation of the contract.     McDonald at paragraph one of the syllabus; Sentinel

Consumer Prods., Inc. v. Mills, Hall, Walborn & Assocs., Inc., 110 Ohio App.3d 211, 673
N.E.2d 967 (11th Dist.1996). “‘A mere request for a change in terms or for cancellation

does not constitute a repudiation.’” McDonald at paragraph one of the syllabus, quoting 4

Corbin, Contracts (1951), Section 973 at 905-906 (1951). Similarly, “a mere expression

of doubt as to willingness or ability to perform is insufficient to constitute repudiation of a

contract.” Farmers Comm. Co. v. Burks, 130 Ohio App.3d 158, 172, 719 N.E.2d 980 (3d

Dist.1998).

         {¶32} If a party has reasonable grounds to believe that the other party will not

perform under the contract, that party may demand adequate assurance of performance

from the other; the failure to provide such assurance is treated as a repudiation of the

contract. Burke v. Athens, 123 Ohio App.3d 98, 703 N.E.2d 804 (9th Dist.1998).

         {¶33} If an anticipatory breach of contract is found to occur, the injured party has

the option of (1) terminating the contract and suing the breaching party immediately, or (2)

continuing the contract and suing the breaching party for damages after the time for

performance has passed. 18 Ohio Jurisprudence 3d Contracts, Section 238 (2011); see

also S.E. Land Dev. Ltd. v. Primrose Mgmt. L.L.C., 193 Ohio App.3d 465, 472-473,

2011-Ohio-2341, 952 N.E.2d 563 (3d Dist.).

         {¶34} In this case, the dispositive facts are undisputed; therefore, whether an

anticipatory breach occurred is a question of law for this court to decide. Milelich v.

Active Plumbing Supply Co., 8th Dist. Cuyahoga No. 90965, 2009-Ohio-2248, ¶ 16, citing

Lancaster v. Rahlfs, 8th Dist. Cuyahoga No. 66146, 94 Ohio App. LEXIS 2377 (June 4,

1994).
       {¶35} Thistledown contends that Sunesis’s August 14, 2009 letter constitutes a

clear and unmistakable breach, and that judgment on the issue of liability in favor of

Thistledown was therefore properly entered as a matter of law. In support of its position

that the letter establishes an anticipatory breach, Thistledown cites to Daniel E. Terreri &

Sons, Inc. v. Mahoning Cty. Bd. of Commrs., 152 Ohio App.3d 95, 2003-Ohio-1227, 786

N.E.2d 921 (7th Dist.).

       {¶36} In that case, Terreri was awarded contracts with Mahoning County by the

county commissioners for the demolition and renovation of the Higbee building in

Youngstown. Terreri filed bid guarantees and performance bonds in the amounts of the

proposed contracts. Over a year passed before the contracts were signed.

       {¶37} Approximately one month after the contracts were signed, Terreri contacted

the commissioners requesting a “notice to proceed” and an increase in the contract price

due to the delay since submitting the bid. By letter, Terreri threatened to withdraw its bid

if the notice or the price increase in the contract was not forthcoming. In a letter weeks

later, Terreri again declared that if the commissioners issued the notice to proceed, the

commissioners were also agreeing to the increase in the contract price. The letter also

reiterated the proposed increase in the contract price and stated that its bid would be

withdrawn if no notice to proceed was received by a date certain. When that date had

passed, Terreri sent the commissioners a final letter stating that it was withdrawing from

the contracts. When the commissioners subsequently decided to abandon the project,

Terreri sued the commissioners for breach of contract, seeking damages for being
prevented from doing any work on the contract.

       {¶38} On appeal, the Seventh District found that Terreri clearly and unequivocally

abandoned the contract by its letters — first by denying that a contract existed, then by

adding additional terms and conditions to the contract, and finally by unilaterally revoking

its obligations by withdrawing its bid. Id. at ¶ 56, 62, 63. Thus, the court concluded that

Terreri was in total breach of the contract by anticipatory repudiation, and all subsequent

events were to be viewed in the light of the breach.

       {¶39} We find Terreri distinguishable from the case before this court. Unlike in

Terreri where no work was performed, Sunesis had been performing under the 1999

contract for over ten years before it sent the August 14, 2009 letter. Morever, the three

letters sent by Terreri clearly and unequivocally stated that it would not perform unless the

contract price was increased. Here, Sunesis sent one letter and continued performing

under the contract despite not being compensated after the letter was sent.

       {¶40} Thistledown relies heavily on the proposition of law contained in Terreri

that “one form of anticipatory repudiation occurs when a party declares that he or she will

not perform the terms of the contract unless the contract price is increased.” Terreri at ¶

46, citing Nuco Plastics, Inc. v. Universal Plastics, Inc., 76 Ohio App.3d 137, 141, 601

N.E.2d 152 (11th Dist.1991). However the exact rule of law in Nuco, provides that “a

demand for additional payment, without refusal to perform until the demand is met, is not

a repudiation of the contract.” Id. at ¶ 141.

       {¶41} In this case, Sunesis did not refuse to perform until the demand for payment
was met, and there is no allegation that Sunesis did not haul away the manure as required

after it sent the August 14, 2009 letter. The record clearly shows that Sunesis continued

with waste removal as required under the 1999 contract, despite not being paid by

Thistledown. Sunesis’s attempt to unilaterally change the contract price was a mere

request to enter into a modification agreement. See Nuco Plastics, 76 Ohio App.3d at

141, 601 N.E.2d 152. Thistledown’s subsequent negotiation and agreement to the amount

further evidences that the August 14, 2009 letter was a request for a modification, not a

breach of the contract by anticipatory repudiation.

       {¶42} Although Thistledown now characterizes the letter as anticipatory

repudiation, meaning that Sunesis was not going to haul the manure unless it received

payment, Sunesis’s subsequent actions by continuing to haul the manure despite not

receiving payment, evidences that the August 14, 2009 letter was a merely a proposed

addendum to the contract.

       {¶43} This interpretation of Sunesis’s letter is consistent with the Thistledown’s

understanding of the letter at the time of receipt because Thistledown repeatedly

characterized and referred to Sunesis’s letter as a “proposed Addendum.” Moreover,

Thistledown engaged in negotiations with Sunesis on the price it would be willing to pay

for the manure removal. Finally, Thistledown agreed to the addendum by paying Sunesis.

 In fact, when Harrah’s acquired Thistledown as a result of the bankruptcy, Sunesis

notified Harrah’s that an outstanding balance of $21,250 for waste removal was due and

owing, which was subsequently paid. This evidences that despite not being paid for
hauling the manure, Sunesis still continued to perform under the 1999 contract.

       {¶44} The record further shows that Thistledown never expressed any concern to

Sunesis during this negotiation process that because it was in the middle of the racing

season and currently in bankruptcy proceedings, it was unable to contract with another

company. Thistledown could have requested an assurance from Sunesis that it would still

continue to perform under the contract without receiving payment. If Sunesis did not

make an assurance, Thistledown’s claim of anticipatory repudiation would have merit.

       {¶45} Consequently, we find that the trial court erred in granting summary

judgment in favor of Thistledown. Sunesis’s assignment of error is sustained. The

judgment of the trial court is reversed on the issue of liability only; the issue of damages, if

any, is not before this court.

       {¶46} Judgment reversed and remanded to the trial court for further proceedings

consistent with this opinion.

       It is ordered that appellant recover from appellees 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.




KATHLEEN ANN KEOUGH, JUDGE
KENNETH A. ROCCO, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
