JAMES L. GRAHAM, District Judge.
This matter is before the court on a motion for summary judgment filed by plaintiff Konica Minolta Business Solutions, U.S.A., Inc. (Konica) against defendant Jon D. McCarthy (McCarthy) and Allied Office Products, Inc. (Allied). Konica seeks judgment on a promissory note and guaranty, an action on an account, and for unjust enrichment. Konica also seeks judgment in its favor on McCarthy's defamation counterclaim.
Konica is a New York corporation with its principal place of business in New Jersey, formed through the merger of Minolta Co., Ltd. and Konica, Inc., in 2003. Allied is an Ohio corporation with its principal place of business in Ohio. McCarthy is the majority shareholder and CEO of Allied and is an Ohio resident. Both Konica and Allied sell or distribute office equipment and accessories including copy machines. The nexus of the parties' relationship is that at certain times relevant to the parties' claims, Allied was an authorized dealer of products manufactured or distributed by Konica by virtue of a "dealer agreement."
By mid-April, 2005, Konica had received complaints regarding Allied's service and determined that it could no longer support Allied as a representative of Konica's national account program. Allied was notified of this decision in May 2005. In June 2005, Konica advised Allied that its sales amounted to less than 14% of the sales quota required under the dealer agreement and gave Allied sixty days in which to cure its breach. When Allied failed to do so, the dealer agreement was terminated, effective September 9, 2005. Allied ceased making any payments on its promissory note as of July 2005. In addition to the remaining amount owed on the note, in its complaint Konica alleges that Allied owed $5, 029.89
On January 30, 2006, Konica filed its complaint alleging breach of a promissory note, breach of a personal guaranty, action on an account, and unjust enrichment. Defendants filed a joint answer, counterclaim and third party complaint on March 7, 2006. In their counterclaim, Allied and McCarthy made claims for breach of contract, tortious interference with contract and defamation. Specifically, Defendants asserted that Konica breached its 1999 and 2004 dealer agreement with Allied by allowing a third party to sell Konica products in Defendants' exclusive geographical area. Defendants third party complaint was against Gary Ell, an employee/agent of Konica for tortious interference and defamation.
On April 26, 2006, Konica filed a motion to dismiss the claims against Ell and Konica based on the 1999 dealer agreement and sought to stay the remaining claims pending arbitration. While the motion to dismiss was pending, McCarthy filed for Chapter 13 bankruptcy in the United States Bankruptcy Court for the Southern District of Ohio. On December 27, 2006, this court granted Defendant Ell's motion to dismiss, without prejudice, finding that Ell was not a proper third-party defendant. This court also dismissed the defendants' claims based on the 1999 Dealer Agreement as time-barred by the plain language of the agreement between the parties and stayed Allied's claims based on the 2004 Dealer Agreement pending arbitration. Because McCarthy was not a party to the dealer agreement which contained the arbitration clause, his individual defamation claim was not stayed pending arbitration. However, McCarthy's individual defamation claim was stayed pending a determination by the bankruptcy court regarding whether the defamation claim was a "core proceeding" under 28 U.S.C. § 157(b). Konica's remaining claims were also stayed pending the resolution of the bankruptcy proceedings.
On August 20, 2007, the Bankruptcy Court entered an order adopting a Chapter 13 plan for McCarthy
Pursuant to court order, on October 29, 2008, McCarthy filed a Notice of Filing of Statement of Defamation and Damages in which he clarified the factual basis of his defamation claim. (doc. 50). Essentially, McCarthy alleges that there were three defamatory statements made against Allied prior to the termination of the business relationship between the parties. This matter is now before the court on Konica's motion for summary judgment. Konica asserts that it is entitled to judgment on its own claims against Allied and McCarthy. Konica further asserts that McCarthy has failed to show the evidence of material questions of fact that would bar summary judgment on his defamation claim. The matter is before this court on diversity jurisdiction pursuant to 28 U.S.C. § 1332.
Under Fed.R.Civ.P. 56(c), summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir.2009). The moving party bears the burden of proving the absence of genuine issues of material fact and its entitlement to judgment as a matter of law, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case on which it would bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir.2005).
The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original); see also Longaberger, 586 F.3d at 465. "Only disputed material facts, those `that might affect the outcome of the suit under the governing law,' will preclude summary judgment." Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir.2008) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Accordingly, the nonmoving party must present "significant probative evidence" to demonstrate that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir.1993).
A district court considering a motion for summary judgment may not weigh evidence or make credibility determinations. Daugherty, 544 F.3d at 702; Adams v. Metiva, 31 F.3d 375, 379 (6th Cir.1994). Rather, in reviewing a motion for summary judgment, a court must determine whether "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. The evidence, all facts, and any inferences that may permissibly be drawn from the facts must be viewed in the light
"In a diversity action, a federal court applies the choice of law rules of the state in which the court sits." See, Extracorporeal Alliance, L.L.C. v. Rosteck, 285 F.Supp.2d 1028, 1036 (N.D.Ohio, 2003). Under Ohio law, subject to limited exceptions, courts should apply the law of the state chosen by the parties to a contract to govern their contractual rights and duties. Ohayon v. Safeco Ins. Co., 91 Ohio St.3d 474, 747 N.E.2d 206, 209 (2001). Absent such a choice by the parties, Ohio's choice of law rules require a court to apply the law of the state with the most significant relationship to the contract. Id. at 477, 209, 747 N.E.2d 206. To determine which state has the most significant relationship to the contract, Ohio has adopted the test set forth in the Restatement 2d of Conflict of Laws, § 188. Gries Sports Enterprises, Inc. v. Modell, 15 Ohio St.3d 284, 473 N.E.2d 807, 810 (1984). Under the Restatement test, the Court will consider such facts as the place of contracting, the place of negotiating the contract, the place of performance, the location of the subject matter of the contract, and the domicile, residence, nationality, place of incorporation and place of business of the parties. Id.
The promissory note and personal guaranty state that they shall be "construed under, governed by, and enforced in accordance with the laws of the State of New York." However, both parties cite to Ohio law in support of their positions and neither has invoked the choice of law provisions of the promissory note and guaranty.
Defamation is a false publication that injures a person's reputation, exposes him to public hatred, contempt, ridicule, shame, or disgrace, or affects him adversely in his trade or business. Sweitzer v. Outlet Communs., Inc., 133 Ohio App.3d 102, 726 N.E.2d 1084, 1088 (1999). When a private individual alleges a cause of action for defamation, he must present evidence of the following five elements of the claim: "(1) a false and defamatory statement; (2) about plaintiff; (3) published without privilege to a third party; (4) with fault or at least negligence on the part of the defendant; and (5) that was either defamatory per se or caused special harm to the plaintiff." Davis v. Jacobs, 126 Ohio App.3d 580, 710 N.E.2d 1185, 1186 (1998). The fourth element of "fault" is determined by whether the alleged defamer "acted reasonably in attempting to discover the truth or falsity or defamatory character of the publication." Franks v. Lima News, 109 Ohio App.3d 408, 672 N.E.2d 245, 248 (1996) (quoting Embers Supper Club v. Scripps-Howard Broadcasting Co., 9 Ohio St.3d 22, 457 N.E.2d 1164, 1167 (1984)). Defamation per se occurs when material is defamatory on its face; defamation per quod occurs when material is defamatory through interpretation or innuendo. Gosden v. Louis, 116 Ohio App.3d 195, 687 N.E.2d 481, 488 (1996).
McCarthy alleges that Konica made three defamatory statements for which it should be held liable:
(doc. 50).
In order for McCarthy's defamation claim to withstand summary judgment, he must establish that a false and defamatory statement was made about him. The three statements which McCarthy relies upon were not made about him individually but rather about his company, Allied Office Products. "It is well-settled that a corporation and not its shareholders can complain of an injury sustained by, or a wrong done to, the corporation." Adair v. Wozniak, 23 Ohio St.3d 174, 492 N.E.2d 426, 428 (1986); Trebilcock v. Elinsky, No. 1:05 CV 2428, 2006 WL 414064, 2006 U.S. Dist. LEXIS 6495 (N.D.Ohio Feb. 21, 2006) (generally, even a sole shareholder of a corporation cannot maintain an action in his individual name to redress injuries sustained by the corporation). McCarthy asserts however that because he signed a personal guaranty, he suffered an injury that was separate and distinct from other shareholders and therefore can bring an action for injuries
However, even if McCarthy could show injury caused by the alleged defamation against Allied, McCarthy has not met his burden to withstand summary judgment because the statements were not defamatory. Furthermore, McCarthy has not presented sufficient evidence to establish that the statements were even made by Konica's representatives.
McCarthy first bases his defamation claim on an statement allegedly made by a Micro Center representative to Capitol Copy indicating that Allied was no longer an authorized dealer. However, McCarthy has provided no evidence as to the actual defamatory statement nor when it was made and only assumes that it was made by Konica representative Gary Ell. At his deposition, McCarthy admitted that he has no evidentiary basis to support his first allegedly defamatory statement:
(McCarthy deposition, doc. 75-2 at p. 74)
It is amply clear that there is no evidence to support the first generalized defamatory statement McCarthy seeks to basis his defamation claim upon. McCarthy has no evidence as to what the content of the alleged statement was let alone that anyone from Konica made such statement. Accordingly, this cannot form the basis of a defamation claim against Konica.
The second defamatory statement McCarthy cites relates to an alleged statement from Gary Ell to Terry Hitzeman during a June 8, 2005 meeting with Capital Copy representatives. McCarthy admits, however, that he does not know what, if anything, Ell said at the meeting. (doc. 75-2, p. 77-78, stating that he cannot speak to specific words because McCarthy was not in the meeting with Ell and Hitzeman). Rather, McCarthy assumes that Gary Ell "lied to the customer Micro Center and told them that we were no longer an authorized dealer." (doc. 75-2 p. 77). McCarthy does not have any actual knowledge that Mr. Ell made any such statement, but testified that because of the fact that Micro Center never did business with Allied again, Ell must have made this statement. (Id.). However, Ell and Hitzeman, who both attended the meeting, agree that Ell only stated that Konica would no longer be supporting Allied as a representative of the National Account
Finally, McCarthy cannot base his defamation claim on the second statement because he failed to plead and prove special damages. The statement that Allied is no longer an authorized dealer is not defamatory on its face (defamation per se) but is only defamatory through interpretation or innuendo (defamation per quod). Gosden v. Louis, 116 Ohio App.3d 195, 687 N.E.2d 481, 488 (1996). ("Defamation per se occurs when material is defamatory on its face; defamation per quod when material is defamatory through interpretation or innuendo"). In order to make a claim based on defamation per quod, McCarthy must plead and prove special damages, which are "damages of such a nature that they do not follow as a necessary consequence of the [complained injury]." Northeast Ohio Elite Gymnastics Training Ctr., Inc. v. Osborne, 183 Ohio App.3d 104, 916 N.E.2d 484, 488 (2009) (citations omitted). Although McCarthy has asserted special damages in the form of Micro Center refusing to renew his contracts, he cannot provide any evidence that Micro Center did so because of the alleged defamatory statement. McCarthy testified that he never contacted Hitzeman to determine why Micro Center did not renew the Allied contracts but assumed it had to do with the alleged defamatory statements. (doc. 75-2 p. 151-152). However, McCarthy also admitted that he had been aware of the fact that Micro Center had been unhappy with some of Allied's service in the past. (Id. p. 58). In addition, Micro Center representative Terry Hitzeman testified that he did not renew Allied's contracts because of past service issues and that the decision to not renew had nothing to do with any statements indicating that Allied was no longer participating in the national account program at Konica. (doc. 75-11 p. 75-76). Thus, McCarthy's second allegedly defamatory statement does not provide a basis for his defamation claim.
The third defamatory statement McCarthy alleges is not a statement but rather an action, namely, that Konica removed Allied from the list of authorized dealers on its website. According to McCarthy, this removal implied a false statement to the public. As with the second alleged defamatory statement, McCarthy is making a claim for defamation per quod because the removal of Allied from the website was not defamatory on its face. Rather, removal from the website only becomes defamatory when "determined by the interpretation of the listener, through innuendo, as being either innocent or damaging." Shoemaker v. Cmty. Action Org. of Scioto County, Inc., No. 06CA3121, 2007 Ohio 3708, 2007 WL 2070365 (Ct. App.Ohio July 16, 2007) (citations omitted).
Although the removal of Allied as an authorized dealer on the Konica website could be construed by potential Allied clients as a statement that Konica had terminated its relationship with Allied and
As the plaintiff has failed to raise any genuine issues of material fact that would allow a reasonable jury to conclude that he was personally defamed by Konica, his claim for defamation must fail.
On August 20, 2007, the Bankruptcy Court entered an order adopting a Chapter 13 plan for McCarthy. As part of the bankruptcy proceedings, Konica filed a proof of claim for $95,200.22, relating to the personal guaranty signed by McCarthy and on which the instant suit was brought. Konica's proof of claim was accepted by the bankruptcy court and was not disputed by McCarthy. Pursuant to the plan adopted, Konica would receive 2% of the total claim, or $1,904.00. Although McCarthy did not dispute Konica's proof of claim based on the personal guarantee, promissory note and account at the bankruptcy court level he now disputes the validity of the guaranty and promissory note on the grounds that it lacked consideration.
A claim is barred by res judicata if all of the following elements are present: "(1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their privies; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action." Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir.1995). As all the elements of res judicata are met in this case, McCarthy is barred from collaterally attacking the bankruptcy court order that confirmed Konica's proof of claim for $95,200.02.
The first element of res judicata is met because the confirmation of a plan of reorganization "constitutes a final judgment in bankruptcy proceedings." Sanders Confectionery Prods. Inc. v. Heller Fin. Inc., 973 F.2d 474, 480 (6th Cir.1992); In re Chattanooga Wholesale Antiques, Inc., 930 F.2d 458, 463 (6th Cir.1991) (confirmation of a plan by the bankruptcy court "has the effect of a judgment by the district court and res judicata principles bar relitigation of any issues raised or that could have been raised in the confirmation proceedings."). Second, both Konica and McCarthy were parties to the instant case as well as the bankruptcy case. Third, McCarthy could have objected to Konica's proof of claim at the bankruptcy court level on the grounds that the promissory note and guaranty lacked consideration or he could have specifically reserved the right to contest the validity of Konica's claim. See, Holly's Inc. v. City of Kentwood (In re Holly's Inc.), 178 B.R. 711, 715 (W.D.Mich.1995) (res judicata barred
This court is barred from disturbing the final order of the bankruptcy court by the doctrine of res judicata. Accordingly, the court cannot consider McCarthy's belated argument that there was no consideration underlying the promissory note. The parties are bound by the decision of the bankruptcy court under which Konica is entitled to $1,904.00. Because the personal guaranty cannot be disputed at this point, Konica's alternative unjust enrichment claim against McCarthy is moot.
A holder of a promissory note "establishes a prima facie case for payment on a note where the note is placed in evidence and the maker's signature is admitted." Cadle Co. v. Toler, No. 90AP-1380, 1991 WL 94437, 1991 Ohio App. LEXIS 2520 (Ct.App.Ohio May 28, 1991) (citing Ohio Rev.Code § 1303.36(B)); Schlup v. Intermark International, Inc., No. 13900, 1989 WL 35127, 1989 Ohio App. LEXIS 1306 (Ct.App. Ohio April 12, 1989) ("a signed promissory note constitutes prima facie evidence of the amount due"). Once a prima facie case is established, the burden shifts to the maker of the note to assert any defenses. Id. A claim of "lack of consideration is an affirmative defense which must be proved by a preponderance of the evidence." Schlup, 1989 WL 35127, 1989 Ohio App. LEXIS 1306.
The undisputed evidence is that Allied entered into a promissory note with Konica for $90,276.90, plus 6% annual interest. McCarthy admits that he signed the promissory note on behalf of Allied and that the note was not paid in full. (Doc. 75-2 p. 26; 33). Thus, Konica has established a prima facie case for payment. Allied argues, however, that there was a lack of consideration
First, "it is well-settled that a note given as security for an antecedent debt is sufficient consideration to establish a valid obligation under a promissory note." Bertrand v. Lax, No.2004-P-0035, 2005 Ohio 3261, 2005 WL 1503721 (Ct.App. Ohio June 24, 2005); Sur-Gro Plant Food Co. v. Morgan, 29 Ohio App.3d 124, 504 N.E.2d 445, 451 (1985) (quoting Ohio Rev.Code § 1303.44) ("no consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind"). Rather than pursuing its contractually guaranteed
Second, Allied has provided no evidence to support its contention that under the terms of the promissory note, Konica was obligated to continue doing business with Allied on a credit basis. The promissory note relates only to the existing trade debt at the time the note was signed. Allied's argument that there was a lack or failure of consideration underlying the note is without merit.
Allied also asserts that the promissory note is unenforceable because it is an unconscionable adhesion contract. Unconscionability is "generally recognized to include both an absence of meaningful choice on the part of one of the parties to the contract, combined with contract terms that are unreasonably favorable to the other party." Roe v. Rent-A-Center, Inc., No. CA2007-09-224, 2008 Ohio 4307, 2008 WL 3893563 (Ct.App.Ohio August 25, 2008) (citing Taylor Bldg. Corp. of Am. v. Benfield 117 Ohio St.3d 352, 884 N.E.2d 12 (2008)). Procedural unconscionability "concerns the circumstances surrounding the formation of the agreement and occurs when no voluntary meeting of the minds was possible." Porpora v. Gatliff Building Co., 160 Ohio App.3d 843, 828 N.E.2d 1081, 1083 (2005). Procedural unconscionability "involves those factors bearing on the relative bargaining position of the contracting parties, e.g., `age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, whether alterations in the printed terms were possible, whether there were alternative sources of supply for the goods in question.'" Small v. HCF of Perrysburg, Inc. 159 Ohio App.3d 66, 823 N.E.2d 19, 23 (2004) (quoting Johnson v. Mobil Oil Corp., 415 F.Supp. 264, 268. (E.D. Mich. 1976)). Whether a contract is adhesive in nature is determined under the procedural unconscionability prong. Rent-A-Center, Inc., 2008 Ohio 4307 at p. 7, 2008 WL 3893563. "Substantive unconscionability refers to the actual terms of the agreement and contract terms are substantively unconscionable if they are unfair and commercially unreasonable." Porpora, 828 N.E.2d at 1084. The party asserting unconscionability of a contract bears the burden of proving that the agreement is both procedurally and substantively unconscionable. W. Reserve Farm Coop., Inc. v. Agarwal, No.2009-G-2892, 2010 Ohio 2950 (Ct.App. Ohio June 25, 2010).
Allied asserts that the contract was procedurally unconscionable because McCarthy was given no choice but to sign the contract or "the business would be shut down." (Doc. 79 p. 15). Allied further asserts that because Konica considered Allied to be near insolvency, and because McCarthy was undergoing cancer treatment at the time, it was procedurally unconscionable for Konica to require him to sign the promissory note. Allied's argument is not persuasive. At the time he signed the note on behalf of Allied, McCarthy was approximately 53 years old and had worked in the industry for decades,
Because Allied has not established a genuine issue of material fact with regards to the validity of the promissory note, summary judgment in favor of Konica on the note is granted. Because summary judgment is granted on the promissory note, Konica's alternative unjust enrichment claim against Allied is moot.
Konica also seeks judgment on its claim for an action on an account in the amount of $6,168.05 for equipment and accessories obtained by Allied after the personal guaranty and promissory note were signed. Under Ohio law, a claim arising out of a written instrument or account must be attached to the complaint. See Ohio R. Civ. P. 10(D)(1). Plaintiff attached a document purporting to be an account to its complaint at Exhibit B. This document reflects a balance of $5,029.89. The account attached to plaintiff's motion for summary judgment is different than that which was attached to the complaint and shows additional purchases by Allied for a total of $6,168.05. Konica did not move to amend the complaint to attach the updated account, and is therefore bound by the document attached to the complaint. Ohio R. Civ. P. 10(D)(1).Accordingly, the court examines this claim using Exhibit B, which shows an outstanding balance of $5,029.89.
Under Ohio law, "an action on an account is appropriate where the parties have conducted a series of transactions, for which a balance remains to be paid." Taylor Steel, Inc. v. Keeton, 417 F.3d 598, 604 (6th Cir.2005) (quoting AMF, Inc. v. Mravec, 2 Ohio App.3d 29, 440 N.E.2d 600, paragraph 1 of the syllabus (Ct. App. Ohio 1981)). An action on account cause of action "exists to avoid the multiplicity of suits necessary if each transaction between the parties (or item on the account) would be construed as constituting a separate cause of action." Baumann, 289 N.E.2d at 377.
In order to succeed in an action on an account, the plaintiff must "prove both all the elements of the contract and that the contract is one that involves transactions usually the subject of a book account." Keeton, 417 F.3d at 604(citing Am. Sec. Serv., Inc. v. Baumann, 32 Ohio App.2d 237,
Having established that a contract existed, plaintiff must then establish an account, which must show four things: (1) the defendant's name; (2) a beginning balance, preferably of zero but at least of some other provable sum; (3) an itemized list of credits and debits; and (4) a means of determining the calculation of the amount claimed to be owed. Asset Acceptance Corp. v. Proctor, 156 Ohio App.3d 60, 804 N.E.2d 975, 977 (2004) (quoting Brown v. Columbus Stamping & Mfg. Co. 9 Ohio App.2d 123, 223 N.E.2d 373, 375 (1967)). Exhibit B to Konica's complaint shows Allied's name and contains a list of credits and debits. It also shows a sum total owed of $5,029.89. The document does not, however, contain a beginning balance of zero, or of any other provable sum. Rather, it starts with a charge of $10.14 on June 3, 2005, followed immediately by three credits, on July 11, 14, and 26, 2005 of $1,912.96, $4,000.00, and $900.00 respectively. There is nothing indicating what those three payments were for nor whether they were for debts incurred prior to the earliest date on this accounting sheet (May 3, 2005). There is simply no way for the court to ascertain how much Allied is alleged to have owed at the beginning of this account. To add to the confusion as to the amount owed, Allied alleges that it paid at least $11,000.00 to Konica which should have been deducted either from the amount owed on the account or on the note. Although Konica argues that Allied should not be able to assert "payment" as a defense now because it did not raise it in its answer as an affirmative defense, Allied did raise the defense of "accord and satisfaction." As "accord and satisfaction" involves payment, Allied did not waive the affirmative defense of payment. See, Asset Acceptance Corp, 804 N.E.2d at 978 (accord and satisfaction when raised as a defense in an answer satisfies the requirement that "payment" be raised as an affirmative defense).
Of additional concern is the fact that the account attached to the plaintiff's complaint (as well as the updated version attached to the motion for summary judgment) appears to contain duplicate charges. For instance, the accounting sheet shows a charge of $637.65 on July 8, 2005 for "Document No. 32597715" with a due date of August 7, 2005. (Ex. B p. 1, line 13). However, on page 2, there is an identical charge of $637.65 on July 8, 2005 for "Document No. 32597715" with a new due date of September 6, 2005. (Ex. B. p. 2 line 2). Further down on page 2, at line 30, there is another charge for on July 8, 2005 for "Document No. 32597715", although this time the amount if off by one cent ($0.01) for $637.66. This type of duplicate accounting occurs with alarming frequency throughout the document and accounts for $24,744.16 of the charges listed.
Summary judgment on Konica's action on an account is improper because a genuine issue of material fact remains as to the amount actually due on the account. Konica has failed to provide documentation of the starting balance on the account that would have permitted the court to calculate the total amount due. See, Great Seneca Fin. v. Felty, 170 Ohio App.3d 737, 869 N.E.2d 30 (2006) (summary judgment on account improper where the plaintiff failed to provide documentation establishing how it reached its beginning balance, making it impossible for the court to calculate the amount due). In addition, there is a genuine issue of material fact, raised by the document itself, as to whether Konica has reached the $5,029.89 balance allegedly owed by improperly or mistakenly posting duplicate charges to Allied's account.
As genuine issues of material fact remain on Konica's action on an account claim, summary judgment on this claim is denied.
For the foregoing reasons, plaintiff's motion for summary judgment (doc. 75) is GRANTED IN PART and DENIED IN PART. Konica's motion for summary judgment on its claim on the promissory note against Allied is GRANTED. Konica's claim on the personal guaranty is GRANTED. Konica's motion for summary judgment on McCarthy's defamation claim is GRANTED. Konica's claim for unjust enrichment is dismissed as moot. Konica's motion for summary judgment on its claim for action on an account is DENIED.
The court will hold a status conference in the near future in order to set dates for the final pretrial and trial in this matter.
IT IS SO ORDERED.