[Cite as Spoerke v. Abruzzo, 2014-Ohio-1362.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


MARK W. SPOERKE,                                 :      OPINION

                 Plaintiff-Appellant,            :
                                                        CASE NO. 2013-L-093
        - vs -                                   :

CHARLIE ABRUZZO, PRESIDENT,                      :
RED LINE MARINE LIQUIDATORS,

                 Defendant-Appellee.             :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 12 CV 001049.

Judgment: Affirmed.


Tammy Georgian, Tammy G. Gibson Co., LPA, 38118 Second Street, Willoughby, OH
44094 (For Plaintiff-Appellant).

Scott D. Simpkins and Stewart D. Roll, Climaco, Lefkowitz, Peca, Wilcox & Garofoli
Co., 55 Public Square, Suite 1950, Cleveland, OH 44113 (For Defendant-Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Mark W. Spoerke, appeals the summary judgment of the Lake

County Court of Common Pleas in favor of appellee, Red Line Marine Liquidators, Inc.,

on Spoerke’s claim for breach of contract. At issue is whether any genuine issues of

material fact exist concerning whether the parties had a meeting of the minds. For the

reasons that follow, we affirm.
        {¶2}   On April 26, 2012, Spoerke, acting pro se, filed a complaint against Red

Line’s president, Charlie Abruzzo, alleging that Mr. Abruzzo breached a contract to sell

a boat to Spoerke. The complaint was later amended to substitute Red Line for Mr.

Abruzzo as the defendant. Red Line filed an answer, denying the material allegations of

the amended complaint.

        {¶3}   Subsequently, Red Line filed a motion for summary judgment, denying the

existence of a contract due to the lack of a meeting of the minds regarding terms of the

sale. Specifically, Red Line argued that Spoerke did not accept its offer, but rather

submitted a counteroffer that was not accepted by Red Line. Spoerke filed his brief in

opposition, and Red Line filed a reply brief. Spoerke then filed a supplemental brief in

opposition. Thereafter, counsel filed a notice of appearance on behalf of Spoerke and a

notice of supplementation with an attached affidavit from Spoerke. Red Line filed a

reply to Spoerke’s notice of supplementation.        Thereafter, Spoerke filed a second

supplemental brief in opposition.

        {¶4}   The statement of facts that follows is derived from the parties’ evidentiary

materials submitted on summary judgment. Red Line, which is based in Oceanport,

New Jersey, sells pre-owned boats to the public at wholesale prices. It sells a wide

variety of mid-size boats in the 35-foot to 50-foot range. Spoerke is a resident of Mentor,

Ohio.

        {¶5}   Spoerke had been looking at various yacht broker websites for several

years for a used Albemarle boat because he likes that type of boat, but felt a new

Albemarle would be too expensive.




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       {¶6}   On Sunday, April 8, 2012, Spoerke learned that Red Line had a 2006 41-

foot Albemarle Express sport fishing boat for sale. As a result, he contacted Red Line

via e-mail expressing an interest in that boat. On Monday, April 9, 2012, he made a

telephone call to Red Line following up on his e-mail.

       {¶7}   Meanwhile, on Tuesday, April 10, 2012, Red Line signed a purchase

agreement for the subject boat with another buyer, Jonathan Danforth, which was

conditioned on Mr. Danforth receiving credit approval. That day, Mr. Danforth was

denied credit approval, invalidating his contract, and the boat again became available

for sale.

       {¶8}   On Wednesday, April 11, 2012, Red Line’s president Mr. Abruzzo called

Spoerke and told him there had been a sale on the boat, but that it had fallen through

and the boat was again available for sale. They discussed the terms of the sale of the

boat to Spoerke. As part of the sale, Spoerke would be trading in his boat, which was a

41-foot 2001 Formula PC.

       {¶9}   Later on April 11, 2012, Red Line sent an e-mail to Spoerke with a

proposed purchase contract signed by Mr. Abruzzo on behalf of Red Line containing the

terms the parties discussed, a list of boat surveyors, and directions to Red Line’s marina

in New Jersey. Mr. Abruzzo asked Spoerke to sign the proposed purchase contract and

to e-mail the signed contact to Red Line. The proposed contract reflected the purchase

price of the boat as $319,000, a deposit of $15,000, and a trade-in allowance for

Spoerke’s Formula PC boat in the amount of $88,000, leaving a balance due of

$216,000. The sale was to close within two weeks, with the survey costs and costs of

the sea trial to be borne by Spoerke.




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       {¶10} Later that day, Spoerke e-mailed Red Line stating that, since the purchase

numbers were not final, did Red Line want him to sign and return the contract and wire

the deposit or should he finalize the details of financing with his lender. Spoerke said

he wanted to use his own lender because his bank was familiar with his finances.

       {¶11} Mr. Abruzzo responded that Red Line needed the contract signed and the

deposit paid. In response, Spoerke wired the $15,000 deposit to Red Line and sent

back a signed purchase agreement for the boat. However, Spoerke wrote and initialed

on the contract form next to the dollar amounts the phrase, “Will adjust per the terms of

the financing.” (Emphasis added.)

       {¶12} Still later on April 11, 2012, Spoerke sent an e-mail to Mr. Abruzzo,

stating:

       {¶13} I am set on the financing, but we need to provide the final details to

             the lender. How much can we gross up the trade and purchase

             price on the Albemarle. Can we go to $140,000 on the Formula,

             and $371,000 on the Albemarle, or $150,000 on the Formula and

             $381,000 on the Albemarle. I would like to gross it up as much as

             possible and save my cash but didn’t know if this would have any

             negative impact on you.         Once I have that revised purchase

             agreement, we should be set to proceed and close pending the

             survey, etc.

       {¶14} Spoerke testified in his deposition that the reason he was attempting to

increase the value of both the Albemarle and his trade-in boat was because he thought

he would thereby obtain a tax benefit for himself.




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       {¶15} Mr. Abruzzo responded with an e-mail stating, “make the numbers how

ever you need em and I will sign it * * *. I wouldn’t go past 150k on the PC * * *.

       {¶16} Two days later, on Friday, April 13, 2012, Spoerke sent an e-mail to Red

Line, stating he had loan approval subject to the survey next Tuesday and the sea trial

on April 21, 2012.      He said his lender will need a signed copy of the purchase

agreement to finalize the loan. Spoerke prepared and attached to his e-mail what he

referred to as “a revised purchase agreement,” reflecting a purchase price of $381,000;

$150,000 for Spoerke’s Formula PC trade-in; and a $15,000 deposit, with a balance due

of $231,000. In this e-mail, Spoerke asked Mr. Abruzzo to sign the revised contract and

to forward it to his lender.

       {¶17} However, Mr. Abruzzo did not sign and return the revised purchase

agreement to Spoerke’s lender. Instead, on the following Wednesday, April 18, 2012,

Red Line proposed selling a similar, but smaller, boat to Spoerke for about $250,000.

The boat had no tower or outriggers to remove, which Spoerke had said he would have

to do on the 41-foot Albemarle. Spoerke responded by e-mail saying that he wanted to

buy the 41-foot Albemarle. He said his lender would be contacting Red Line.

       {¶18} However, Red Line did not proceed with the sale of the Albemarle to

Spoerke.     Mr. Abruzzo stated in his affidavit that Red Line rejected Spoerke’s

counteroffer because it was concerned that the inflated purchase price and trade-in

allowance could be construed as bank fraud in connection with Spoerke’s efforts to

obtain financing. On April 23, 2012, Mr. Abruzzo e-mailed Spoerke, telling him that

Spoerke was asking Red Line to participate in bank fraud, which it would not do, and

returned Spoerke’s $15,000 deposit.




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      {¶19} Thereafter, Red Line again made the boat available for sale. On April 24,

2012, Red Line sold the Albemarle to Jonathon Danforth, the same person who had

unsuccessfully attempted to buy it on April 10, 2012, for $319,000, after Mr. Danforth

obtained financing. Two days later, on April 26, 2012, Spoerke, pro se, filed this action.

      {¶20} The trial court granted summary judgment in favor of Red Line, finding

that, as a matter of law, there was no meeting of the minds and no enforceable contract

and thus no breach of contract.         The court found that, based on the parties’

correspondence, they did not have a common intention regarding some of the essential

terms of the contract, i.e., the price of Albemarle and the value of Spoerke’s trade-in.

The court found that, while the sales agreement Red Line e-mailed to Spoerke on April

11, 2013 could be construed as an offer to sell, Spoerke did not accept it. Rather, he

added a provision indicating the terms would be adjusted for financing purposes. Later

that day, Spoerke sought to raise the sales price of the Albemarle and the trade-in value

of his boat. The court found that, while Red Line considered Spoerke’s offer, it did not

accept it. Spoerke admitted that Red Line never signed the revised purchase contract

he sent to Red Line on April 11, 2012. Red Line’s president, Mr. Abruzzo, stated in his

affidavit that he did not accept the revised purchase contract or send the revised terms

of the contract to Spoerke’s lender because he, Mr. Abruzzo, was afraid it could be

construed as bank fraud.     The court found that, without Red Line’s acceptance of

Spoerke’s counteroffer, there was no contract.

      {¶21} Spoerke appeals the trial court’s judgment, asserting the following for his

sole assignment of error:




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       {¶22} “The trial court erred in granting Appellee’s motion for summary judgment

based upon its opinion that the totality of the correspondence indicated that the parties

did not have a distinct and common intention with regard to some of the essential terms

of the sale, finding there was no meeting of the minds and no enforceable contract.”

       {¶23} This court has held that summary judgment is proper 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) reasonable minds can come to but one conclusion, and that conclusion is

adverse to the nonmoving party, that party being entitled to have the evidence

construed most strongly in his favor. Civ.R. 56(C); Frano v. Red Robin International,

Inc., 181 Ohio App.3d 13, 2009-Ohio-685, ¶12 (11th Dist.), citing Leibreich v. A.J.

Refrigeration, Inc., 67 Ohio St.3d 266, 268 (1993).

       {¶24} The party seeking summary judgment on the ground that the nonmoving

party cannot prove his case bears the initial burden of informing the trial court of the

basis for the motion and of identifying those portions of the record that demonstrate the

absence of a genuine issue of material fact on the essential elements of the nonmoving

party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996).

       {¶25} The moving party must point to some evidence of the type listed in Civ.R.

56(C) that affirmatively demonstrates that the nonmoving party has no evidence to

support his claim. Dresher, supra, at 293.

       {¶26} If this initial burden is not met, the motion for summary judgment must be

denied. Id. However, if the moving party has satisfied his initial burden, the nonmoving

party then has a reciprocal burden, as outlined in Civ.R. 56(E), to set forth specific facts




                                         7
showing that there is a genuine issue for trial and, if the nonmovant does not so

respond, summary judgment, if appropriate, shall be entered against him. Id.

       {¶27} Since a trial court’s decision ruling on a motion for summary judgment

involves only questions of law, we conduct a de novo review of the trial court’s

judgment. DiSanto v. Safeco Ins. of Am., 168 Ohio App.3d 649, 2006-Ohio-4940, ¶41

(11th Dist.). Further, the existence of a contract is a question of law. Zelina v. Hillyer,

165 Ohio App.3d 255, 2005-Ohio-5803, ¶12 (9th Dist.). This court reviews questions of

law regarding the existence of contracts de novo. Continental W. Condominium Unit

Owners Assn. v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501, 502 (1996).

       {¶28} In Ohio, the Statute of Frauds provides that “a contract for the sale of

goods for the price of five hundred dollars or more is not enforceable * * * unless there

is some writing sufficient to indicate that a contract for sale has been made between the

parties and signed by the party against whom enforcement is sought or by his

authorized agent * * *.” R.C. 1302.04.

       {¶29} The essential elements of a contract are an offer, acceptance, contractual

capacity,   consideration   (the   bargained-for   legal   benefit   and/or   detriment),   a

manifestation of mutual assent and legality of object and of consideration. Adlaka v.

Valley Elec. Consol, Inc., 11th Dist Trumbull No. 2007-T-0071, 2008-Ohio-1690, ¶20.

For a contract to be enforceable, the parties must have a meeting of the minds as to all

essential terms. Id.; Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, ¶16. Unless

the parties agree as to all essential terms, no contract exists. Id. “The existence of an

enforceable contract is a prerequisite to a claim for breach of contract.” Ireton v. JTD

Realty Invests., L.L.C., 12th Dist. Clermont No. CA2010-04-023, 2011-Ohio-670, ¶38.




                                         8
       {¶30} 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. Noroski v.

Fallet, 2 Ohio St.3d 77, 79 (1982). Generally, the submission of a purchase order is

viewed as being an offer, which may then be accepted or rejected by the offeree.

American Bronze Corp. v Streamway Products, 8 Ohio App.3d 223 (8th Dist.1982),

paragraph one of the syllabus. Further, “[a] reply to an offer [by the offeree] which

purports to accept but is conditional on the offeror’s assent to terms additional to or

different from those offered is not an acceptance but is a counteroffer.” Foster v. Ohio

State University, 41 Ohio App.3d 86, 88 (10th Dist. 1987), citing 1 Restatement of the

Law 2d, Contracts (1981) 145, Section 59.        Moreover, the transmission of various

amendments to a proposed purchase agreement constitute counteroffers used for

negotiating purposes before finalizing the intended agreement. Hairston v. Goodman,

8th Dist. Cuyahoga No. 58193, 1991 Ohio App. LEXIS 1176, *9 (Mar. 21, 1991). The

Eighth District in Hairston further stated:

       {¶31} When plaintiff inserted the forty-eight hour “point of sale” review

              provision, something remained to be done to establish the contract.

              In addition, plaintiff’s response did not correspond to the terms of

              the Goodmans’ counteroffer. Plaintiff had tendered either a

              conditional acceptance or a counteroffer which defendants never

              initialed or accepted in accord with the Statute of Frauds.

       {¶32} The purchase agreement did not show a concluded contract since

              the evidence establishes no meeting of the minds. Plaintiff

              presented no evidence to refute defendants’ assertion they did not




                                          9
             assent to the inserted alteration. At best, plaintiff tendered a

             conditional   acceptance    which   destroyed    the   original   offer.

             Otherwise, the change plaintiff made in the purchase agreement

             could be considered a counteroffer on which there was no meeting

             of the minds which is essential to formation of a contract. Id. at *11-

             *12.

      {¶33} Applying the foregoing principles to this case, the proposed purchase

contract Mr. Abruzzo sent to Spoerke can only be construed as an offer since it sought

Spoerke’s acceptance. However, Spoerke did not accept Red Line’s offer as submitted.

Rather, he accepted the offer conditioned on Red Line’s acceptance of the additional

provision Spoerke wrote on the contract that the terms would be adjusted pursuant to

the terms of financing. This condition changed the acceptance into a counteroffer, which

Red Line was required to accept in order to form a valid contract. However, Red Line

did not accept the counteroffer. In fact, Spoerke admits that Red Line did not sign off on

the counteroffer. As Red Line did not accept Spoerke’s counteroffer, no contract existed

between the parties, and Red Line was free to accept Mr. Danforth’s offer to purchase

the Albemarle.

      {¶34} Contrary to Spoerke’s argument, the parties’ ongoing discussions and e-

mail correspondence was nothing more than negotiation prior to finalizing the parties’

contract. Hairston, supra. Spoerke concedes that the contract price, i.e., the price of

the Albemarle, was a key term of the contract. In Red Line’s offer, the price was shown

as $319,000.     However, because Spoerke also wanted to obtain a tax benefit, he

revised the offer to show the contract price as $381,000. Spoerke’s suggestion that the




                                        10
only material term was the net price to be paid to Red Line is belied by the fact that Red

Line refused to sign Spoerke’s counteroffer. Spoerke conveniently ignores the fact that,

Red Line never signed Spoerke’s counteroffer, and, instead, Mr. Abruzzo advised him

by e-mail that his maneuverings could be construed as bank fraud in which Red Line

would not participate and returned Spoerke’s deposit.

       {¶35} We therefore hold that the trial court did not err in finding that, as a matter

of law, the parties did not reach a meeting of the minds as to the price of the Albemarle

or as to the value of Spoerke’s trade-in; that no contract existed between the parties;

and that Red Line was entitled to summary judgment on Spoerke’s claim for breach of

contract.

       {¶36} For the reasons stated in the opinion of this court, appellant’s assignment

of error is overruled. It is the order and judgment of this court that the judgment of the

Lake County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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