       [Cite as N. Side Bank & Trust Co. v. Trinity Aviation, L.L.C., 2020-Ohio-1470.]




                     IN THE COURT OF APPEALS
           FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO


NORTH SIDE           BANK       &    TRUST :                APPEAL NOS. C-190021
COMPANY,                                                                 C-190023
                                                 :          TRIAL NO. A-1205557
       Plaintiff-Appellee/Cross-
       Appellant,                                :               O P I N I O N.

 vs.                                             :

TRINITY AVIATION, LLC, et al.,                   :

       Defendants,                               :

 and                                             :

ARLINGTON HEIGHTS RECYCLING, :
LLC, d.b.a. A&A RECYCLING,
                                 :
       Intervenor-Defendant-
       Appellant/Cross-Appellee, :

 and                                             :

HOLLAND ROOFING GROUP, LLC,                      :

 and                                             :

INDUSPRO, LLC,                                   :

       Third-Party Defendants-
       Appellants/Cross-Appellees.               :
                     OHIO FIRST DISTRICT COURT OF APPEALS


Civil Appeals From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Vacated in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: April 15, 2020

Markesbury & Richardson Co., LPA, and Barry A. Rudell, II, for Plaintiff-Appellee/Cross-
Appellant,

Statman, Harris & Eyrich, LLC, William B. Fecher, Alan J. Statman and Saba N. Alam, for
Intervenor-Defendant-Appellant/Cross-Appellee      and       Third-Party   Defendants-
Appellants/Cross-Appellees.




                                              2
                       OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Judge.

       {¶1}   In this high-flying dispute over airplane parts, replete with a failing company,

shenanigans with a warehouse full of inventory, and a tortured procedural history, we

confront a fairly basic question that vexes first-year law students: did the parties form a

contract? Although these sophisticated parties certainly knew how to dress up a contract in

more formal attire, here they just sent a few email volleys. This correspondence, however,

contained the necessary attributes for contract formation, and we accordingly reverse the

trial court’s conclusion to the contrary and remand for further proceedings.

                                              I.

       {¶2}   The origins of this appeal stretch back a decade with the plaintiff-appellee/

cross-appellant North Side Bank & Trust Company (“NSBT”) and one of its debtors, Trinity

Aviation, LLC, (“Trinity”). After securing a loan with NSBT, Trinity subsequently defaulted.

NSBT initially worked with Trinity to bring it into compliance with the loan agreement, but

this proved fruitless, ultimately prompting NSBT to file a complaint in July 2012 in the

Hamilton County Common Pleas Court, citing default under the loan agreement and

accelerating the remaining sums due.      NSBT obtained judgment in its favor based on

executed cognovit provisions in the loan instruments against Trinity and its personal

guarantors, Gary and Debbie Post and Charles and Lynn Young, for the remaining balance

on the loan. Of course, as in so many of these types of disputes, that judgment is merely the

prelude for further proceedings rather than the finale.

       {¶3}   Leading up to the July 2012 judgment, NSBT also worked to liquidate assets

that Trinity pledged as collateral for the loan and contracted with a liquidator out of Texas,

Transportation Planning, Inc., (“TPI”) to handle the logistics of a sale of assets, which



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                       OHIO FIRST DISTRICT COURT OF APPEALS


involved a significant amount of airplane parts. The materials in question were located at a

warehouse on Kemper Road leased by Trinity, later known as (perhaps unlucky) “Building

13.” Building 13 also housed consignment inventory belonging to another entity, which was

separated from Trinity’s assets and enclosed in a small room within the warehouse.

       {¶4}   For various reasons, TPI’s initial efforts to liquidate the parts failed to yield

suitable results, as the bank received no legitimate offers. Consequently, TPI advised NSBT

that an alternative sale of the materials as scrap might prove viable as a means of recouping

some of its losses. As part of this new plan to liquidate the items as scrap, TPI contacted

various entities that might be interested in purchasing scrap metals, including Arlington

Heights Recycling, LLC, d.b.a. A&A Recycling (“A&A Recycling”).

       {¶5}    Following that outreach, Douglas Blair, the owner and operator of A&A

Recycling, visited and viewed material located at Trinity’s Building 13 with Sam Ashmore of

TPI in June 2012. Mr. Blair and Mr. Ashmore toured the building, with Mr. Blair examining

the metals contained in the inventory.       After completing this assessment, Mr. Blair

subsequently emailed Mr. Ashmore a price-per-pound “bid” for the metals located at

Building 13 on June 21, 2012, the “Phase I” purchase. Mr. Ashmore confirmed that A&A

Recycling prevailed on the bid, authorizing A&A Recycling to remove the Phase I materials

from Building 13. Given the volume of parts, Mr. Blair explained that this exercise took “a

couple of trucks and * * * about five days to remove phase one,” which they relocated to A&A

Recycling’s place of business.

       {¶6}   After the Phase I purchase, Mr. Ashmore again contacted A&A Recycling

about purchasing more material located in Building 13, the so-called “Phase II” purchase.

Mr. Blair explained that he initially viewed this additional material on July 2, 2012, but

                                                  4
                       OHIO FIRST DISTRICT COURT OF APPEALS


returned to the warehouse on July 9. During this second visit, the parties realized that

Trinity’s principal, Gary Post, had moved items within the warehouse and relocated other

items from Building 13 (presumably in an effort to hide more valuable collateral from

NSBT). Despite recognizing that many “high-end parts” were no longer in the warehouse,

Mr. Blair submitted a second bid via email on July 13. This email confirmed the per-pound

prices for both the Phase I and Phase II bids, stipulated to the removal of the Phase II

materials, and referenced a $20,000 deposit, with the remaining sums due to be paid by

August 1 after weighing the materials. He also sent a second email July 13 asking for written

confirmation of the bank’s acceptance of both bids. Mr. Ashmore wasted little time in

agreeing to this—the next day, he wrote “[t]his is to advise that the terms and conditions of

your bid to purchase material from Trinity Aviation warehouse is accepted by North Side

Bank[.]”

       {¶7}   A&A Recycling then enlisted the Holland Roofing Group, LLC, (“HRG”)

(owned by an individual named Hans Philippo) to assist it in removing the Phase II

materials. In light of the volume, this effort necessitated over 50 tractor-trailers to move the

parts. With HRG’s help, A&A Recycling transported all of the material to a warehouse in

Kentucky owned by a company called Induspro, LLC, (“Induspro”). The Phase I materials

were also eventually relocated to this warehouse as well.

       {¶8}   As NSBT struggled to get its arms around the extent of Trinity’s inventory

(and its collateral), it eventually realized that assets were located at several different

warehouses and potentially commingled with consignment inventory belonging to other

entities. Therefore, days after giving A&A Recycling the green light to proceed with removal

of the Phase II inventory, NSBT moved for appointment of a receiver “for the purpose of

                                                   5
                       OHIO FIRST DISTRICT COURT OF APPEALS


carrying into effect the judgement of [NSBT], and collecting, preserving, accounting for, and

determining the claims of all parties to the personal property of * * * Trinity Aviation, LLC.”

The court ultimately approved this motion, appointing Richard Nelson receiver to “take

possession of, assemble, account for and marshal all property of Trinity Aviation, LLC.”

       {¶9}   Understandably flummoxed by this turn of events, and concerned that the

appointment of a receiver would stall the liquidation of the Phase I and Phase II materials

now located in Kentucky, A&A Recycling asked the trial court in late 2012 to approve the

sale and distribution of the assets in its possession. For its part, the bank opposed the sale,

arguing that (1) A&A Recycling was not yet a party to the ongoing action between the bank

and its debtor, (2) any sale of the assets was premature until the receiver could fully

inventory the extent of the assets, and (3) “it [was] questionable whether A&A [Recycling]

has a contractual right to purchase these assets for scrap[.]”

       {¶10} Then, in July 2013, the receiver filed a motion requesting that the court

approve a proposed online auction process to sell all the personal and consigned property of

Trinity. At this time, A&A Recycling again objected, asserting that a sale of the assets

already occurred, and it moved to intervene (which the court granted). For their part, the

receiver and NSBT, citing the comingling of assets with consignment materials, the removal

of items from the warehouse, and alleged lack of consensus on subject or quantity terms,

maintained that the sale could not be enforced as there was no “meeting of the minds.” In

short, the bank took various inconsistent positions during these proceedings (a vice that

A&A Recycling is guilty of as well) based on its vacillating view of the value of the parts.

When it viewed them as relatively worthless, it was happy to send them to A&A Recycling




                                                   6
                         OHIO FIRST DISTRICT COURT OF APPEALS


for scrap, but when the receiver offered a rosier view of the value, the bank concluded that

no bargain was struck.

       {¶11} The trial court eventually convened an evidentiary hearing to determine the

propriety of the proposed receiver’s sale and the contentious ownership issues, but

ultimately threw up its hands in frustration as to the lack of consensus of what A&A

Recycling had allegedly purchased, citing the general distribution of the materials over

various locations and perceived lack of “meeting of the minds * * * as to what was being

purchased for the $20,000.” The court then granted the receiver’s motion to sell the

property, concluding that A&A Recycling failed to establish the requirements of a valid

contract with NSBT.

       {¶12} After an unsuccessful appeal of the decision by A&A Recycling (which we

dismissed for lack of a final appealable order), the trial court eventually granted A&A

Recycling leave to file various cross-claims, counterclaims and third-party claims against

NSBT, the receiver, and TPI. In particular (in light of the failure of its contractual claim),

A&A Recycling pursued unjust enrichment against NSBT for the moving and storage

expenses related to the transport of the materials initially located at Building 13. While the

trial on these matters began in November 2015, it was delayed while A&A Recycling moved

to amend its claim and to add parties, which the trial court granted in 2016. The amended

complaint now included A&A Recycling and the other parties involved in the removal and

storage of the Phase II materials, including (among others) HRG and Induspro (collectively,

the “A&A Parties”).

       {¶13} The trial finally progressed and drew to a close in late 2017, resulting in a

2018 letter decision and entry awarding the A&A Parties monetary damages against NSBT

                                                  7
                        OHIO FIRST DISTRICT COURT OF APPEALS


on their unjust enrichment claim. From this judgment, the A&A Parties now appeal in two

assignments of error, contesting the trial court’s 2013 finding that no contract for sale

existed for the Phase I and Phase II materials and challenging the award of damages on the

unjust enrichment claim as erroneous for its exclusion of certain expenses. For its part,

NSBT cross-appealed, asserting in a single assignment of error that the trial court erred in

awarding unjust enrichment damages against it.

                                              II.

                                              A.

       {¶14} In the first assignment of error, the A&A Parties assert that the trial court

erred by declining to enforce the alleged sale between NSBT and A&A Recycling, finding

that no “meeting of the minds” occurred. This implicates fundamental aspects of Ohio

contract law.    “Ohio recognizes three types of contracts: express, implied in fact, and

implied in law (or quasi-contract).” Linder v. Am. Natl. Ins. Co., 155 Ohio App.3d 30, 2003-

Ohio-5394, 798 N.E.2d 1190, ¶ 18 (1st Dist.), citing Legros v. Tarr, 44 Ohio St.3d 1, 6, 540

N.E.2d 257 (1989). Express contracts exist when there is offer, acceptance, and mutual

assent. Id.     Implied-in-fact contracts require a showing of assent, but a court otherwise

construes surrounding facts and circumstances to determine the scope of the agreement.

Id. Finally, implied-in-law contracts are legal fictions which operate in equity when one

party wrongfully receives a benefit giving rise to a legal obligation, i.e., claims for unjust

enrichment and quantum meruit. See id.

       {¶15} Thus, for either express or implied-in-fact contracts to exist, a meeting of the

minds between the contracting parties must occur, demonstrated by offer, acceptance, and

consideration. See Reedy v. Cincinnati Bengals, Inc., 143 Ohio App.3d 516, 521, 758 N.E.2d

                                                    8
                        OHIO FIRST DISTRICT COURT OF APPEALS


678 (1st Dist.2001) (“In order for a valid contract to exist, there must be a ‘meeting of the

minds’ on the essential terms of the agreement, which is usually demonstrated by an offer

and acceptance, and consideration.”); Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-

2985, 770 N.E.2d 58, ¶ 16 (“Essential elements of a contract include an offer, acceptance,

contractual capacity, consideration * * *, a manifestation of mutual assent and legality of

object and of consideration.”). The alleged contract must also reflect the “essential terms,”

with requisite definiteness and certainty. See Reedy at 521 (“[T]he essential terms of the

contract, usually contained in the offer, must be definite and certain.”). The essential terms

of a contract generally include the subject matter, identity of the parties bound,

consideration, price, and quantity. See Alligood v. Procter & Gamble Co., 72 Ohio App.3d

309, 311, 594 N.E.2d 668 (1st Dist.1991); Knoop v. Orthopaedic Consultants of Cincinnati,

Inc., 12th Dist. Clermont No. CA2007-10-101, 2008-Ohio-3892, ¶ 13 (“The essential terms

of a contract include: the identity of the parties, the subject matter, consideration, a quantity

term, and a price term.”).

       {¶16} Additionally, because this dispute involves a sale of goods over $500, the

statute of frauds compels written memorialization of the agreement. See R.C. 1302.04;

Battle Axe Constr. L.L.C. v. H. Hafner & Sons, Inc., 1st Dist. Hamilton No. C-180640, 2019-

Ohio-4191, ¶ 16-17 (emails between parties sufficed to form enforceable written agreement).

Of course, we may construe multiple writings together to determine the scope of the parties’

agreement. See L.B. Trucking Co., Inc. v. C.J. Mahan Const. Co., 10th Dist. Franklin No.

o1AP-1240, 2002-Ohio-4394, ¶ 26, quoting Juhasz v. Costanzo, 144 Ohio App.3d 756, 762,

761 N.E.2d 679 (7th Dist.2001) (“ ‘In order to prove the existence of a written contract, the

essential elements of the contract must be part of a writing, or part of multiple writings that

                                                   9
                       OHIO FIRST DISTRICT COURT OF APPEALS


are part of the same contractual transaction.’ ”); Spectrum Benefit Options, Inc. v. Med.

Mut. of Ohio, 174 Ohio App.3d 29, 2007-Ohio-5562, 880 N.E.2d 926, ¶ 28 (4th Dist.)

(same).

       {¶17} Finally, we determine the existence of a contract as a question of law, and our

standard of review on questions of law is de novo. See R & A Lawn Care, LLC v. Back, 1st

Dist. Hamilton No. C-160682, 2017-Ohio-4404, ¶ 15; Oryann, Ltd. v. SL & MB, L.L.C., 11th

Dist. Lake No. 2014-L-119, 2015-Ohio-5461, ¶ 24 (“The existence of a contract is a question

of law that we review de novo.”); Zelina v. Hillyer, 165 Ohio App.3d 255, 2005-Ohio-5803,

846 N.E.2d 68, ¶ 12 (9th Dist.) (same).

                                             B.

       {¶18} With that background in mind, we turn our attention to the written record

created by the parties—in this case a series of emails. We evaluate them to ascertain

whether they “connote[ ] an exchange of promises where the parties have communicated in

some manner the terms to which they agree to be bound.” Cuyahoga Cty. Hosp. v. Price, 64

Ohio App.3d 410, 415, 581 N.E.2d 1125 (8th Dist.1989); see Technical Const. Specialties v.

Gerspacher, 9th Dist. Medina No. C.A. 2785-M, 1999 WL 247297, *1 (Apr. 28, 1999), citing

Legros, 44 Ohio St.3d at 6, 540 N.E.2d 257 (noting that a meeting of the minds indicates

that the parties have a distinct and common intention which they have communicated to

each other because “[i]n an express contract, the meeting of the minds is manifested by offer

and acceptance.”).

       {¶19} On July 13, Mr. Blair sent two emails to Mr. Ashmore, one delineated the per-

pound price of each metal involved in the Phase I and Phase II purchases, removal plans for

the Phase II materials, and mentioned the $20,000 deposit as well as the process for

weighing and payment in full for the materials. The remaining July 13 email asked Mr.

                                                  10
                       OHIO FIRST DISTRICT COURT OF APPEALS


Ashmore for written acceptance from the bank “on both * * * bids.” An “offer” may be found

where there is a “ ‘manifestation of willingness to enter into a bargain, so made as to justify

another person in understanding that his assent to that bargain is invited and will conclude

it.’ ” Reedy, 143 Ohio App.3d at 521, 758 N.E.2d 678, quoting Garrison v. Daytonian Hotel,

105 Ohio App.3d 322, 325, 663 N.E.2d 1316 (2d Dist.1995). Therefore, because the terms of

the July 13 email were such that all that remained was for NSBT’s assent to form a binding

agreement (and, indeed, they invited acceptance), this constituted an offer.          See SST

Bearing Corp. v. MTD Consumers Group, Inc., 1st Dist. Hamilton No. C-040267, 2004-

Ohio-6435, ¶ 16 (price quotation constituted valid offer where it included essential terms

and all that was necessary was other party’s acceptance); Extreme Machine & Fabricating,

Inc. v. Avery Dennison Corp., 2016-Ohio-1058, 49 N.E.3d 324, ¶ 25 (7th Dist.) (offer exists

where terms are such that only the party’s assent is needed to form a binding agreement).

       {¶20} In response to these emails, Mr. Ashmore replied on July 14: “[T]his is to

advise that the terms and conditions of your bid to purchase material from Trinity Aviation

warehouse is accepted by North Side Bank[.]” In contract formation, “[t]he manifestation of

assent by the offeree constitutes the acceptance.” McSweeney v. Jackson, 117 Ohio App.3d

623, 632, 691 N.E.2d 303 (4th Dist.1996); see Motorists Mut. Ins. Co. v. Columbus Fin.,

Inc., 168 Ohio App.3d 691, 2006-Ohio-5090, 861 N.E.2d 605, ¶ 8 (10th Dist.) (“[C]onduct

sufficient to show agreement * * * constitutes acceptance.”). Here, NSBT’s answer in

response to A&A Recycling’s offer, which conveyed its assent to the terms, constituted a

proper acceptance.    In other words, at that point all the basic elements for contract

formation were present, i.e., an offer, acceptance, and consideration in the form of A&A

Recycling’s promise to pay and its $20,000 deposit. See Forbes v. Showmann, Inc., 1st

Dist. Hamilton No. C-180325, 2019-Ohio-2362, ¶ 6 (under Ohio law consideration consists

                                                  11
                       OHIO FIRST DISTRICT COURT OF APPEALS


of a benefit to the promisor or a detriment to the promisee); Motorists Mut. Ins. Co. at ¶ 8-9

(noting that basic requirements of contract formation are met when there is offer,

acceptance, and consideration).

       {¶21} This acceptance of A&A Recycling’s terms evidenced the necessary “meeting

of the minds” to create an enforceable contract as it expressed the parties’ “common

intention” as to the essential terms of the contract, i.e., that A&A Recycling purchased the

materials located in Trinity Aviation’s warehouse at the per-pound prices for each metal

listed for Phase I and Phase II.   See Spoerke v. Abruzzo, 11th Dist. Lake No. 2013-L-093,

2014-Ohio-1362, ¶ 20, 30, citing Noroski v. Fallet, 2 Ohio St.3d 77, 79, 442 N.E.2d 1302

(1982) (“To constitute a valid contract, there must be an offer on the one side and an

acceptance on the other resulting in a meeting of the minds of the parties.”); Super Food

Servs., Inc. v. Munafo, Inc., 1st Dist. Hamilton No. C-990383, 2000 WL 238027, *3 (Mar.

3, 2000) (“A ‘meeting of the minds’ is the manifestation of mutual assent by the parties.”);

Altercare of Mayfield Village, Inc. v. Berner, 2017-Ohio-958, 86 N.E.3d 649, ¶ 28 (8th

Dist.), quoting McCarthy, Lebit, Crystal & Haiman Co., L.P.A. v. First Union Mgt., Inc., 87

Ohio App.3d 631, 620, 622 N.E.2d 1093 (8th Dist.1993) (meeting of the minds requires

manifestation of intent to be bound and that the parties communicate “ ‘distinct and

common intention’ ” to each other).

       {¶22} In fact, it is difficult to understand what NSBT meant to convey based on

these emails other than acceptance of a contractual offer. The bank protests, however, that

the offer lacked sufficient definiteness with respect to the quantity term. See Salameh v.

Doumet, 5th Dist. Delaware Nos. 19 CAF 01 0009 and 19 CAF 01 0008, 2019-Ohio-5391, ¶

67, citing Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations, 61 Ohio


                                                 12
                       OHIO FIRST DISTRICT COURT OF APPEALS


St.3d 366, 369, 575 N.E.2d 134 (1991) (“[T]o declare the existence of a contract, the parties

must consent to its terms, there must be a meeting of the minds of the parties, and the

contract must be definite and certain.”). The bank maintains that “without basic terms,

such as the description and quantity of the goods, a contract may not exist.” But here we

find that the emails meet that burden with the requisite clarity, i.e., we can discern the

contours of their agreement in a manner sufficient for its enforcement. See First Natl. Bank

of Omaha v. iBeam Solutions, L.L.C., 2016-Ohio-1182, 61 N.E.3d 740, ¶ 53 (10th Dist.)

(terms of a contract must be reasonably certain and satisfied when they provide a basis for

determining the existence of a breach and manner for providing an appropriate remedy);

Mr. Mark Corp v. Rush, Inc., 11 Ohio App.3d 167, 169, 464 N.E.2d 586 (8th Dist.1983)

(same).

       {¶23} To be sure, unlike many purchase contracts for the sale of goods, the

correspondence here does not request x number of widgets. But the emails evidence the

parties’ agreement that A&A Recycling purchase “[a]ll material” located in Trinity’s Building

13 in two phases, and that it agreed to payment on a per-pound basis for various metals,

with a $20,000 deposit; which satisfies this inquiry.      Compare Episcopal Retirement

Homes, 61 Ohio St.3d at 369, 575 N.E.2d 134 (no contract existed where the court could not

determine from writings “plans and specifications necessary for construction” nor “work

timetable, monetary remuneration and other items[.]”); see Alligood, 72 Ohio App.3d at 311,

594 N.E.2d 668 (so long as court can discern that parties intended to be bound, less

essential terms omitted may be fashioned in order to reach a “just result”). Moreover, this

satisfies the writing requirements for contracts involving the sale of goods. See Mezher v.

Schrand, 1st Dist. Hamilton No. C-180071, 2018-Ohio-3787, ¶ 8 (statute of frauds only

requires writing to contain essential terms of the agreement); 1961 Official Comment, R.C.

1302.04 (“[R]equired writing need not contain all the material terms of the contract and * *

                                                13
                       OHIO FIRST DISTRICT COURT OF APPEALS


* need not be precisely stated. * * * The only term which must appear is the quantity term

which need not be accurately stated[.]”).

       {¶24} NSBT also posits that no contract exists because of the confusion caused by

the debtor’s relocation of certain assets, resulting in “hopelessly commingled parts,” and

asserting that this justified the trial court’s determination of no “meeting of the minds.” The

fact that subsequent events rendered performance of the contract (or an evaluation of its

breach) more difficult, however, does not negate the validity or obligations of the contract.

See Coady Contracting Co. v. Brand Road Invest. Co., Ltd., 10th Dist. Franklin Nos. 88AP-

986 and 88AP-1195, 1990 WL 80652, *4 (June 14, 1990), quoting London & Lancashire

Indem. Co. of Am. v. Bd. of Commrs. of Columbiana Cty., 107 Ohio St. 51, 140 N.E. 672

(1923), syllabus (“ ‘An express contract to do an act which is possible in the nature of things

and not contrary to law will not be discharged by subsequent events * * * which do not

render performance physically impossible, but merely make performance more

burdensome[.]’ ”); Leon v. State Farm Fire and Cas. Co., 2017-Ohio-8168, 98 N.E.3d 1284,

¶ 11 (8th Dist.) (contracting party not excused from performance because performance

proved difficult or burdensome). Therefore, any possible difficulty that the parties may

encounter in determining the extent of the purchased materials due to circumstances after

the fact presents a problem of proof at trial rather than an impediment to contract

formation.

       {¶25} We clarify, however, that we reject A&A Recycling’s more expansive argument

based on its claimed entitlement to all Trinity inventory, regardless of where located. That

is not what the emails provide; rather, they limit the scope of offer (and, by extension,

acceptance) to the inventory in Building 13 at a certain time and thus the contract cannot

extend beyond that. But what of inventory initially housed at Building 13 but subsequently



                                                 14
                        OHIO FIRST DISTRICT COURT OF APPEALS


moved to other locations? Again, that represents a problem of proof that will have to be

sorted out upon remand and not something that we can resolve on the present state of the

record before us. NSBT may well be able to show that A&A Recycling knew of the relocation

and thus such items (or maybe at least some of them) fell outside the scope of the contract;

we express no view on the point.

       {¶26} In sum, as the parties’ writings contain all the basic elements for contract

formation and demonstrate the required “meeting of the minds,” they sufficed to create an

enforceable contract between the parties, and we find that the trial court erred in declining

to enforce the sale. This also obviated the need for the trial court to explore these issues at

an evidentiary hearing because this legal determination should have been made as a

threshold matter on the terms of the written record. We therefore sustain the A&A Parties’

first assignment of error.

                                              C.

       {¶27} But the resolution of the contract question implicates the relief awarded for

unjust enrichment. The trial court allowed unjust enrichment in light of the failure to

establish a contract, and thus the A&A Parties cannot recover under both theories.         See

Lehigh Gas-Ohio, L.L.C. v. Cincy Oil Queen City, L.L.C., 2016-Ohio-4611, 66 N.E.3d 1226, ¶

24 (1st Dist.) (equitable action in quasi-contract for unjust enrichment not available when

claim covered by an express contract); Padula v. Wagner, 2015-Ohio-2374, 37 N.E.3d 799,

¶ 48 (9th Dist.), citing Ullmann v. May, 147 Ohio St. 468, 476, 72 N.E.2d 63 (1947) (“Ohio

law does not permit recovery under the theory of unjust enrichment when an express

contract covers the same subject.”). The A&A Parties acknowledge the point, conceding that

success in establishing a contract wipes away the relief that they already obtained.

                                                   15
                       OHIO FIRST DISTRICT COURT OF APPEALS


       {¶28} Therefore, based on our resolution of the first assignment of error, we vacate

the trial court’s unjust enrichment award, which moots the A&A Parties’ second assignment

of error, challenging the trial court’s award of unjust enrichment damages, and NSBT’s

cross-appeal disputing the same. On remand, the trial court should limit the case to breach

of contract unless the A&A Parties can show entitlement to unjust enrichment for any

inventory not located in Building 13 (i.e., inventory for which they have no contractual right,

but can establish some basis for equitable relief). We express no view on whether the A&A

Parties could succeed on such a claim, but only note that it remains theoretically possible

consistent with our contractual ruling above.



                                             III.

       {¶29} We accordingly sustain the A&A Parties’ first assignment of error, vacate the

unjust enrichment remedies, and find A&A Parties’ second assignment of error and NSBT’s

cross-appeal moot. We remand this case for further proceedings in accordance with this

opinion.

                                                                      Judgment accordingly.

ZAYAS, P. J., and CROUSE, J., concur.

Please note:
       The court has recorded its own entry this date.




                                                    16
