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

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1 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO J.S. PRODUCTIONS, INC., Plaintiff-Appellant, vs. MTS RESTAURANTS, LLC, LANCE SNARR, JOSEPH THOMA, JOSEPH JABLONSKY, and KENNETH DAVID, Defendants-Appellees. APPEAL NO. C TRIAL NO. A JUDGMENT ENTRY. We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court. 1 Plaintiff-appellant JSP Productions, Inc., ( JSP ) is a real estate brokerage company owned by JoAnn Sedar, a business and real estate broker who specializes in the sale of restaurants. Defendants-appellees Lance Snarr and Joseph Thoma are the owners of defendant-appellee MTS Restaurants, LLC. MTS owned and operated a restaurant located in the Hyde Park neighborhood of Cincinnati. In July 2005, MTS and JSP entered into a brokerage agreement that provided that JSP would have a 30-day exclusive-listing 1 See S.Ct.R.Rep.Op. 3(A), App.R. 11.1(E), and Loc.R. 12.

2 period and that any client procured during this 30-day period and included on a list of exclusive contacts JSP was to forward to MTS at the end of the listing period would survive the exclusive-listing period for six months. During the exclusive-listing period, JSP contacted defendant-appellee Elliott Jablonsky about buying MTS s restaurant. In July 2005, Jablonsky, in his individual capacity, signed a Non-Circumvention and Confidentiality Agreement that prevented him from sharing confidential information he learned about the restaurant, and that prohibited him from initiating contact with the sellers for a period of two years from the date of the agreement. Sedar then arranged for Jablonsky and defendant-appellee Ken David, who would later become Jablonsky s partner, to tour the restaurant owned by MTS. Sedar testified in her deposition that David signed an offer to buy the restaurant, which she presented to Thoma on the day of the tour. But there is no copy of this offer signed by David or Jablonsky in the record. Sedar found another buyer for the restaurant, but that buyer had difficulty securing a small-business loan. Ultimately the restaurant was not purchased during the exclusive-listing period. Sedar never sent a list of exclusive contacts to MTS following the expiration of the listing period, as she was required to do under the brokerage agreement. Seven weeks after the expiration of the listing period, MTS sold its restaurant, to VC Steak, LLC, financing the purchase itself. Two of the managing members of VC Steak are Jablonsky and David. Snarr testified in his deposition that MTS had maintained contact with Jablonsky and David, which ultimately resulted in the sale of the restaurant. JSP sued MTS, Snarr, and Thoma (collectively referred to as the sellers ) for breach of contract (the brokerage agreement), promissory or equitable estoppel, unjust enrichment, quantum merit, fraud, and civil conspiracy. JSP also alleged that Snarr and Thoma were the alter ego of MTS, attempting to pierce the corporate veil of MTS. JSP 2

3 also sued Jablonsky and David for breach of contract (the noncircumvention agreement), promissory estoppel, unjust enrichment, quantum merit, fraud, and conspiracy. David filed a motion to dismiss, and the remaining parties filed cross-motions for summary judgment. The trial court dismissed JSP s complaint against David and entered summary judgment in favor of the sellers and Jablonsky. The court also denied JSP s motions for summary judgment against the sellers, Jablonsky, and David. On appeal, JSP now raises five assignments of error. In its first four assignments of error, JSP argues that the trial court erred in granting summary judgment in favor of the sellers and Jablonsky. We disagree. The standard for our review of a summary judgment is de novo. 2 Summary judgment is proper when there are no issues of material fact in dispute, the party seeking summary judgment is entitled to it, and reasonable minds can find only for the moving party. 3 Although JSP asserted a variety of claims against the sellers and Jablonsky, this case ultimately hinged on written contracts. And when a contract is clear and unambiguous, the court need not concern itself with rules of construction or go beyond the plain language of the agreement to determine the rights and obligations of the parties. Instead, the court must give effect to the contractual language. 4 Here, with respect to the sellers, the brokerage agreement required JSP to send a list of contacts to MTS at the end of the exclusive-listing period. The brokerage agreement specifically stated that this list would contain the clients that would survive the 30-day exclusive-listing period for an additional six months. Thus, 2 Gratton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241; Flynn v. Westfield Ins. Co., 168 Ohio App.3d 94, 2006-Ohio-3719, 858 N.E.2d 858, at 6. 3 Id. 4 Aultman Hosp. Assn. v. Community Mut. Ins. Co. (1989), 46 Ohio St.3d 51, 53, 544 N.E.2d

4 under the terms of the contract, JSP had to forward a written list of client contacts that would survive the listing period to be eligible for a commission if the sellers decided to sell to one of those contacts. It is undisputed that JSP never sent a list of client contacts to MTS. Although we are mindful that JSP did introduce the sellers to Jablonsky and David, there is nothing in the record to demonstrate that JSP substantially complied with the terms of the brokerage agreement the record does not even contain a copy of a written offer signed by Jablonsky or David during the 30-day exclusive-listing period. And we cannot simply delete an express provision of the contract because it might bring about a more just result. 5 Thus, because JSP did not send the required list of client contacts to MTS, MTS was free to sell to any buyer after the initial 30-day period without owing a commission to JSP. Accordingly, we conclude that the trial court properly entered summary judgment in favor of the sellers on JSP s breach-of-contract claim. With respect to Jablonsky, we also hold that the trial court properly entered summary judgment for him on JSP s breach-of-contract claim. Here, the Non- Circumvention and Confidentiality Agreement provided that Jablonsky was not to contact the sellers in violation of the agreement. JSP presented no evidence to demonstrate such a violation. We also hold that the trial court properly entered summary judgment in favor of the sellers and Jablonsky on JSP s claims for fraud, quantum merit, and unjust enrichment. To prove fraud, JSP needed to present evidence that the sellers and Jablonsky had concealed a material fact from JSP. With respect to the sellers, we have already held that because they did not receive JSP s written list of exclusive 5 See Foster Wheeler Enviresponse, Inc. v. Franklin Co. Convention Facilities Auth. (1997), 78 Ohio St.3d 353, 362, 678 N.E.2d 519 ( it is not the responsibility or function of this court to rewrite the parties contract in order to provide for a more equitable result ). 4

5 contacts at the end of the listing period, they were free to sell to whomever they wanted. With respect to Jablonsky, there was no evidence presented that he had reinitiated contact with the sellers. Instead, the record demonstrates that the sellers wanted to continue to work with Jablonsky and had continued to maintain contact with David, Jablonsky s future partner. Accordingly, as a matter of law, JSP could not maintain claims of fraud against the sellers and Jablonsky. And, in the absence of fraud, bad faith, or illegality, claims for quantum merit and unjust enrichment failed when there was an underlying written contract governing the relationship between the parties. 6 We also hold that the trial court properly entered summary judgment in favor of the sellers and Jablonsky on JSP s claim for promissory estoppel. Where there is an unambiguous written contract, there can be no claim of promissory estoppel. 7 Finally, we hold that the trial court properly entered summary judgment in favor of the sellers and Jablonsky on JSP s claim for civil conspiracy. Civil conspiracy is a malicious combination of two or more persons to injure another in person or property in a way not competent of one alone, resulting in actual damages. 8 A civil conspiracy claim cannot succeed without an underlying unlawful act. 9 Since the substantive causes of action on which the conspiracy claim in this case was based were without merit, JSP s conspiracy claim also failed. 10 Based on the foregoing, the first four assignments of error are overruled. 6 See Saraf v. Maronda Homes, Inc. of Ohio, 10 th Dist. No. 02AP-461, 2002-Ohio-6741 (where a written contract between the parties addresses the matter in dispute, the contract governs the parties performance, and the equitable principles of quantum meruit and unjust enrichment are inapplicable). 7 Kashif v. Central State Univ. (1999), 133 Ohio App.3d 678, 684, 729 N.E.2d 787, citing Ed Schory & Sons, Inc. v. Soc. Natl. Bank (1996), 75 Ohio St.3d 433, 662 N.E.2d Wolfer Ent., Inc. v. Overbrook Dev. Corp. (1999), 132 Ohio App.3d 353, 359, 724 N.E.2d Williams v. Aetna Fin. Co. (1998), 83 Ohio St.3d 464, 475, 700 N.E.2d Wolfer, supra, citing Minarik v. Nagy (1963), 8 Ohio App.2d 194, 195, 193 N.E.2d

6 In the fifth and final assignment of error, JSP argues that the trial court erred in dismissing its complaint against David for failure to state a claim. We are unpersuaded. Taking the allegations in the complaint as true, we hold that there were no set of facts upon which relief could have been granted. First, David was not a party to any contract with JSP. Thus, JSP s breach-of-contract claim could not be maintained. Next, in support of its promissory-estoppel claim, JSP, relying on the Non-Circumvention Agreement that Jablonsky signed in his individual capacity, alleged that David had promised not to contact the sellers. But as we have already noted, David was not a party to the contract and thus did not make any promise to JSP. Accordingly, a claim for promissory estoppel could not be maintained. Nor could JSP prevail on a claim for fraud, where JSP only alleged that, in light of the promise (in the Non-Circumvention Agreement) not to contact the sellers, David had engaged in a concerted scheme to conceal from JSP his negotiations with the sellers. Because David was not a party to that contract and made no representation or promise to JSP, the complaint pleaded no set of facts that would have supported a fraud claim. With respect to its claim for quantum merit or unjust enrichment, JSP had to allege that JSP had conferred a benefit upon [David], that [David] knew of the benefit, and that [David] ha[d] retained the benefit under circumstances where such retention, without compensation, [would have been] unjust. 11 But JSP simply alleged that it had procured a buyer, and that the sellers had not paid it a 11 Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 182, 465 N.E.2d

7 commission. It was not unjust that David did not pay JSP a commission, when that was the sellers obligation, not the buyers, under the brokerage agreement. Finally, JSP s conspiracy claim against David could not be maintained because there was no properly alleged underlying act to support such claim. Based on the foregoing, the fifth assignment of error is overruled, and the judgment of the trial court is affirmed. A certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App. R. 27. Costs shall be taxed under App.R. 24. SUNDERMANN, P.J., HILDEBRANDT and CUNNINGHAM, JJ. To the Clerk Enter upon the Journal of the Court on June 11, 2008 per order of the Court. Presiding Judge 7