[Cite as Adkinson v. Alex Bell Dental-Daniel Cobb, DDS, L.L.C., 2019-Ohio-2127.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 DIANNE ADKINSON                                      :
                                                      :
         Plaintiff-Appellant                          :    Appellate Case No. 28282
                                                      :
 v.                                                   :    Trial Court Case No. 2018-CVF-3524
                                                      :
 ALEX BELL DENTAL-DANIEL COBB,                        :    (Civil Appeal from Kettering Municipal
 DDS, LLC                                             :    Court)
                                                      :
         Defendant-Appellee                           :


                                              ...........

                                              OPINION

                             Rendered on the 31st day of May, 2019.

                                              ...........

DIANNE ADKINSON, 3330 Martel Drive, Dayton, Ohio 45420
     Plaintiff-Appellant, Pro Se

LAURENCE A. LASKY, Atty. Reg. No. 0002939, 130 West Second Street, Suite 830,
Dayton, Ohio 45402
      Attorney for Defendant-Appellee

                                              .............




TUCKER, J.
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       {¶ 1} Plaintiff-appellant, Dianne Adkinson, appeals from the trial court’s judgment

of January 9, 2019, in which the court granted summary judgment in favor of Defendant-

appellee, Alex Bell Dental—Daniel Cobb, DDS, LLC (“ABD”). Adkinson argues that the

trial court erred by entering judgment pursuant to Civ.R. 56 because her complaint against

ABD gave rise to a genuine issue of material fact regarding the interpretation of the terms

of an accord and satisfaction. Although Adkinson’s argument lacks merit, the allegations

set forth in the complaint give rise to a material issue of fact regarding the applicability of

the accord and satisfaction, meaning that the trial court erred in part by granting summary

judgment. Therefore, the trial court’s judgment of January 9, 2019, is affirmed in part

and reversed in part, and this case is remanded to the trial court for further proceedings

consistent with this decision.

                             I. Facts and Procedural History

       {¶ 2} Adkinson states that “[o]n or about 2017,” she engaged ABD’s services for

the installation of a dental bridge. Appellant’s Brief 3. The bridge, unfortunately, failed

to remain fixed in place, but because it “was [under] warrant[y] for [five] years,” ABD

removed it and installed a replacement at “no additional charge.” Id. ABD, for its part,

acknowledges only that it performed “some bridgework” for Adkinson between “February

15, 2017 [and] October 10, 2017.”1 Appellee’s Brief 1.



1 The parties have indicated neither the date on which ABD installed the first bridge nor
the date on which ABD installed the replacement bridge. Appellant’s Brief 3-5;
Appellee’s Brief 1. By Adkinson’s account, the interval during which she received the
treatments in question extended until October 18, 2017. Appellant’s Brief 3; Appellee’s
Brief 1.
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       {¶ 3} On November 7, 2017, Adkinson sent a letter to ABD in which she requested

“a credit towards future dental work” in “recompense” for the discomfort and

inconvenience she experienced because of the problem with the first bridge and the

consequent necessity of her undergoing the installation of the replacement. Appellant’s

Brief 4 and Exhibit 1; Appellee’s Brief 1. ABD contacted Adkinson by telephone on

November 13, 2017, asking that she specify the amount of the credit she had in mind,

and in an email message dated November 20, 2017, Adkinson said that she wanted a

credit equivalent to the price of “one annual exam with [a] full set of x-rays.” Appellant’s

Brief 4 and Exhibit 2; see Appellee’s Brief 1. Noting that she might change her insurance

provider in the following year, Adkinson also inquired about the insurance plans that ABD

would accept. Appellant’s Brief, Exhibit 2. ABD answered Adkinson’s question about

insurance in an email message dated December 4, 2017. Appellant’s Brief, Exhibit 3.

       {¶ 4} On or about December 5, 2017, ABD sent a letter to Adkinson offering to pay

her $230 in exchange for her agreement to “release and forever discharge [ABD], Dr.

[Daniel] Cobb in his personal capacity, and all [of ABD’s] agents, employees, heirs and

assigns from any and all claims * * * arising out of the treatment provided by [ABD] from

February 15[, 2017,] through October 10, 2017.” Appellant’s Brief, Exhibit 5; Appellee’s

Brief 1. The letter arrived with a check enclosed, and in the letter, ABD advised Adkinson

that by “accepting [the] check,” she would be “accepting [the] sum [of $230] IN FULL

SETTLEMENT, ACCORD AND SATISFACTION.”                    (Capitalization sic.)   Appellant’s

Brief 4 and Exhibit 5. Adkinson deposited the check into her bank account on December

6, 2017. Appellant’s Brief 5. Then, by letter dated December 14, 2017, ABD informed

Adkinson that, “effective 30 days from [her] receipt of [the] letter,” it would no longer
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provide her with treatment. Appellant’s Brief, Exhibit 6.

       {¶ 5} In June 2018, Adkinson’s replacement bridge broke. Id. at 6. Adkinson

notified ABD in a letter regarding her “[w]arranty [c]overage” for the bridge. Complaint,

Kettering M.C. No. 18CVF03524 (Sept. 26, 2018), ¶ 16 and Exhibit E. In the letter, which

was dated July 2, 2018, Adkinson demanded a “refund [of her] out-of-pocket expenses,”

in the amount of $2,023, “as soon as possible.”         Id.   ABD responded in an email

message dated July 26, 2018, indicating that it “reject[ed] [Adkinson’s] claim of ‘warranty

coverage’ ” on the basis of the foregoing “ ‘full settlement, accord and satisfaction.’ ” Id.

at Exhibit F.

       {¶ 6} On September 26, 2018, Adkinson filed her complaint against ABD,

presenting claims for breach of contract; breach of an express warranty; breach of an

implied warranty; and unjust enrichment.        Id. at ¶ 18-22.    The trial court entered

summary judgment in favor of ABD on January 9, 2019, and Adkinson timely filed her

notice of appeal to this court on January 28, 2019.

                                        II. Analysis

       {¶ 7} Adkinson’s brief includes the substantive components required by App.R.

16(A), though Adkinson omits a formal statement of what appears to be her single

assignment of error, which is that the trial court erred by entering judgment under Civ.R.

56 despite the existence of a genuine issue of material fact. See Appellant’s Brief 3.

According to the rule itself, summary judgment is proper only when: (1) a case presents

no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a

matter of law; and (3) construing the evidence most strongly in favor of the non-moving

party, reasonable minds can reach only one conclusion, which is adverse to the non-
                                                                                        -5-

moving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d

46 (1978); Dalzell v. Rudy Mosketti, L.L.C., 2d Dist. Clark No. 2015-CA-93, 2016-Ohio-

3197, ¶ 5, citing Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696

N.E.2d 201 (1998). The substantive law of the claim or claims being litigated determines

whether a fact is “material.”   Herres v. Millwood Homeowners Assn., Inc., 2d Dist.

Montgomery No. 23552, 2010-Ohio-3533, ¶ 21, citing Hoyt, Inc. v. Gordon & Assocs.,

Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).

       {¶ 8} Initially, the movant bears the burden of establishing the absence of any

genuine issue of material fact. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d

798 (1988). The movant may rely only on evidence of the kinds listed in Civ.R. 56(C) for

this purpose. Dalzell at ¶ 5, citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662

N.E.2d 264 (1996). If the movant meets its burden, then the non-moving party bears a

reciprocal burden to establish, as set forth in Civ.R. 56(E), that the case presents one or

more genuine issues of fact to be tried. Id. at ¶ 6. The non-moving party, in satisfying

this requirement, may not rely merely upon the allegations or denials offered in the

pleadings, but like the movant, “must be able to point to evidentiary materials of the type

listed in Civ.R. 56(C).” Dresher at 293, quoting Civ.R. 56(E); Dalzell at ¶ 6. On appeal,

a trial court’s ruling on a motion for summary judgment is reviewed de novo. Dalzell at

¶ 6, citing Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42.

       {¶ 9} Here, the trial court’s magistrate determined that “this is an accord and

satisfaction case,” and in its judgment of January 9, 2019, the court adopted the

magistrate’s proposed findings of fact and conclusions of law. See Magistrate’s Findings

of Fact and Conclusions of Law 1, Dec. 4, 2018; Final Judgment Entry 3, Jan. 9, 2019.
                                                                                             -6-

Accord and satisfaction “is 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); see also Reed

Elsevier, Inc. v. Feder, 2015-Ohio-5013, 50 N.E.3d 1067, ¶ 21 (2d Dist.), citing Allen at

231. To be successful, the defense requires proof that: (1) the plaintiff accepted the

defendant’s offer to resolve the plaintiff’s claim; (2) the defendant satisfied its undertaking

to the plaintiff; and (3) collectively, the offer and acceptance were supported by

consideration.   See Allen at 231-232.       The first and second of these requirements

“merge when [a] creditor manifests acceptance of [an] offer by negotiating a check sent

by the debtor with the offer.” Id. at 232.

       {¶ 10} Two “essential safeguards [are] built into the doctrine of accord and

satisfaction [to] protect creditors or injured parties from overreaching debtors or

tortfeasors.” Id. at paragraph two of the syllabus. First, “there must be a good-faith

dispute about the debt” or potential claim for relief, and second, for a creditor or

prospective plaintiff to be bound by its acceptance of an offer of resolution, “the creditor

must have reasonable notice that the [offer] is intended to be in full satisfaction” of the

debt or potential claim. See id. In “the case of an unliquidated or disputed demand, the

consideration [for the accord and satisfaction] rests in part upon the settlement of the

dispute.” Kirk Williams Co., Inc. v. Six Indus., Inc., 11 Ohio App.3d 152, 154, 463 N.E.2d

1266 (2d Dist.1983).     A “claim is an ‘unliquidated demand,’ as the term is used in

connection with an accord and satisfaction, if there is a bona fide dispute as to its [validity]

or amount.” (Citation omitted.) See id.

       {¶ 11} Before discussing the merits of Adkinson’s appeal, we address ABD’s

objection to the exhibits attached to Adkinson’s brief. ABD contends, incorrectly, that we
                                                                                         -7-


may not consider any of the exhibits because they have not been properly authenticated.

Appellee’s Br. 3-4. Yet, the first, second, third and sixth exhibits to Adkinson’s brief are

the same documents that Adkinson attached to her complaint as Exhibits “A,” “B,” “C” and

“D,” and as a result, we may consider these exhibits pursuant to Civ.R. 10(C) and 56(C).

Appellant’s Brief, Exhibits 1-3 and 6; Complaint, Kettering M.C. No. 18CVF03524 (Sept.

26, 2018), Exhibits A-D; see also Kirk Excavating & Constr., Inc. v. RKJ Ents., LLC, 7th

Dist. Carroll No. 18 CA 0926, 2018-Ohio-3735, ¶ 11.         Furthermore, Adkinson’s fifth

exhibit is the same document attached by ABD as Exhibit “B” to its answer. Answer,

Kettering M.C. No. 18CVF03524 (Nov. 2, 2018), Exhibit B. Although ABD’s objection to

our consideration of Adkinson’s fourth exhibit is puzzling, ABD argues correctly that the

document has not been properly authenticated, and we consequently have not

considered it.

       {¶ 12} Regarding the merits, Adkinson argues that the trial court erred by finding

that she and ABD reached an accord and satisfaction because the record was insufficient

to establish the parties’ intentions beyond any genuine dispute. See Appellant’s Brief 7.

An accord constitutes “ ‘a contract between a debtor and a creditor in which the creditor’s

claim is settled in exchange for a sum of money other than that which is allegedly due,’ ”

and the corresponding “ ‘[s]atisfaction is the performance of that contract.’ ”         Fox

Consulting Group, Inc. v. Spartan Warehouse and Distrib., Inc., 2016-Ohio-7621, 73

N.E.3d 1055, ¶ 8 (1st Dist.), quoting Allen, 66 Ohio St.3d at 231, 611 N.E.2d 794. When

“construing a contract, a court’s primary objective is to ascertain and give effect to the

intent of the parties,” and to “achieve this objective,” the court should “examine the

contract as a whole and presume that the language used reflects the parties’ intent.”
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(Citation omitted.) MRI Software, L.L.C. v. West Oaks Mall FL, L.L.C., 2018-Ohio-2190,

116 N.E.3d 694, ¶ 27 (8th Dist.). If “the contract is clear and unambiguous, [then] the

court may look no [farther] than the four corners of the contract to find the intent of the

parties.” Id.

       {¶ 13} Here, we find the terms of the accord proposed by ABD in its letter of

December 5, 2017, to be clear and unambiguous. ABD offered to pay Adkinson $230 in

exchange for a release from liability associated with “any and all claims * * * arising out

of the treatment provided by [ABD] from February 15[, 2017,] through October 10, 2017.”

Appellant’s Brief, Exhibit 5; Appellee’s Brief 1. The terms proposed by ABD went well

beyond the “recompense” requested by Adkinson in her letter of November 7, 2017, and

would seem to encompass even treatment unrelated to the installation of the two bridges,

so long as that treatment was provided during the stated interval. Nevertheless, the

terms of ABD’s offer were unequivocal, and whether ABD secretly intended to sever its

professional relationship with Adkinson following her negotiation of the check is irrelevant.

By depositing ABD’s check into her bank account, Adkinson manifested her acceptance

of the offer, thereby concluding the accord and satisfaction.

       {¶ 14} An issue of material fact, however, remains to be adjudicated. The terms

of the accord and satisfaction apply to treatment provided by ABD only between February

15, 2017, and October 10, 2017, but in her complaint, Adkinson alleges that “[t]he final

appointment to install the replacement bridge occurred on October 18, 2017.”

Complaint, Kettering M.C. No. 18CVF03524 (Sept. 26, 2018), ¶ 7. ABD’s response to

this allegation, in violation of Civ.R. 8(B), is that its “counsel admits in part and denies in

part the allegations set forth in Paragraphs 5, 6, 7 and 8 of [the] [c]omplaint.” Answer,
                                                                                            -9-


Kettering M.C. No. 18CVF03524 (Nov. 2, 2018), ¶ 4.

        {¶ 15} Under Civ.R. 8(B), only the defending “party,” also referred to as the

“pleader” in the rule, has standing to state its “defenses to each claim asserted” against

it.   Furthermore, “[w]hen a pleader intends in good faith to deny only part” of an

allegation, “the pleader shall specify so much of it as is true and material and shall deny

the remainder.” (Emphasis added.) Regardless, ABD’s response to Paragraph 7 of the

complaint is meaningless in the absence of any indication as to which parts of

“Paragraphs 5, 6, 7 and 8” it admits and which parts of “Paragraphs 5, 6, 7 and 8” it

denies.

        {¶ 16} Paragraph 4 of ABD’s answer is, by default, a denial of Paragraph 7 of the

complaint. Even so, as the party seeking summary judgment, ABD failed to meet its

burden to submit evidence, of the types allowed under Civ.R. 56, sufficient to demonstrate

the absence of any genuine issue regarding the dates in 2017 on which it provided

treatment to Adkinson. In the absence of such evidence, the trial court had no basis on

which to find that Adkinson’s “claim[s] [were] settled in full by the parties on * * * December

[6,] 2017, when [ABD’s check for $230] was cashed,” because only those claims related

to treatment provided from February 15, 2017, to October 10, 2017, were settled under

the accord and satisfaction. Final Judgment Entry 3. Adkinson’s assignment of error is

overruled in part to the extent that her complaint relates to treatment that she received

from February 15, 2017, to October 10, 2017, but her assignment of error is sustained in

part to the extent that her complaint relates to treatment that she received before February

15, 2017, or after October 10, 2017.

                                       III. Conclusion
                                                                                          -10-


       {¶ 17} The trial court found correctly that Adkinson’s claims for relief were settled

by the parties’ accord and satisfaction with respect to treatment provided by ABD from

February 15, 2017, to October 10, 2017. At the same time, the trial court erred inasmuch

as it granted summary judgment in favor of ABD with respect to treatment provided before

February 15, 2017, or after October 10, 2017. Therefore, the trial court’s judgment of

January 9, 2019, is affirmed in part, as it relates to claims for relief based upon treatment

received by Adkinson in the interval stated in ABD’s letter of December 5, 2017, and

reversed in part, to the extent that Adkinson has stated claims for relief in her complaint

that relate to treatment provided outside of that interval. The case is remanded to the

trial court for further proceedings consistent with this decision.



                                      .............



FROELICH, J. and HALL, J., concur.



Copies sent to:

Dianne Adkinson
Laurence A. Lasky
Hon. James F. Long
