Opinion
Case No. C-1-99-620
April 19, 2001
Memorandum and Order
Plaintiff initiated this matter in 1999 after Defendant Managing Process Inc. ("MPI"), through its sole shareholder and officer, Defendant Richard Hodapp, terminated its relationship with plaintiff. Plaintiff alleged that the termination of that relationship constituted a breach of an agreement between the parties. He also asserted claims for fraud, unjust enrichment, and payment on accounts. On November 28, 2000, Plaintiff amended his complaint to add a claim in quasi-contract. This matter is before the Court upon Defendants' motion to dismiss (Doc. 40). Defendants seek the dismissal of all of Plaintiff's claims.
A. Background
Defendant MPI owns copyrighted intellectual property used in a process called Decision Mapping, which it licenses to, inter alia large corporations for use in their businesses. Prior to March 1997, Plaintiff worked for one of the corporations that used Decision Mapping. He was primarily responsible for the implementation of Decision Mapping in his employer's business. He alleges that he developed a user-friendly Windows software application of Decision Mapping.
Plaintiff alleges that, in March 1997, he and MPI began negotiating the terms of an agreement whereby Plaintiff's software application of Decision Mapping would be marketed and licensed with Decision Mapping and Plaintiff would work as an associate of, or in some similar relationship with, MPI. Plaintiff alleges that he and MPI entered into such an agreement, which called for various payments to Plaintiff when licenses for Decision Mapping were sold or MPI provided training to corporations in the use of Decision Mapping. Plaintiff alleges that the agreement between him and MPI is contained in three letters, which are attached to his complaint.
The first letter that Plaintiff alleges constitutes a part of the agreement between him and MPI is dated March 20, 1997 and was sent by Plaintiff to Andrew Crawford, an employee of MPI in Great Britain:
Dear Andy
Our agreement as I see it
We've done some good thinking Andy. Nearly there.
Attached is my understanding of the key points that came out of our meeting yesterday. I trust this is in accord with yours. I also attach a summary of what I see as the benefits for each of the parties from our new relationship.
There are just a few things that need attention as follows:
3. Your agreement (or otherwise) to the points in the attached note.
4. A copy of the basic Associate agreement for me to see please.
5. A copy of the original Lucas Aerospace Agreement for the file.
6. Richard's view on the copyright wording I have suggested that Workflo must include on the Lucas version 2.02 of the software and the software printed maps. I must fax this to Workflo urgently in order to have the new version before the Unisys presentation and to continue things with Lucas.
In relation to our management of Workflo we agreed that:
Someone crossed through the following item:
— I would send you a copy of the agreement with them.
— Once I've received your response to point 7., I will instruct them to proceed with the Copyright changes and set up a meeting to include you, to take place next week, for us to explore new business relationships.
To correct the anomaly of the printed maps, we plan to stick on appropriate printed labels at the bottom of the front page. I will get a quotation for this.
I look forward to joining you in what I believe will be a very powerful new business.
Best regards /s/
Marcus Hamilton
7. The modification needed to Richard's letter. I will fax the suggested changes later to Richard and I suggest that he faxes the revised one first and then sends it for the file.
The following notation appears in the margin next to that item:
NOT DONE I DON'T SEEM TO HAVE A COPY.
Attached to that letter, which is referred to hereinafter as "Contract Letter A", is the following appendix:
The following are elements we agreed for inclusion in the contract:
1. Normal associate agreement of 50% of all the sales value on the non software related sales by Marcus.
2. Concerning the software Marcus will get the following percentages:
— 50% of all "back Software sales" made to all past clients (irrespective of who sells it)
— 50% of all new sales of the Software package* when sold by Marcus.
— 40% of all new sales of the Software package* when sold by others.
*The Software package includes the Software license, the branded software, the manuals, the software training and other support. In cases where the Software package is integrated with the overall Process License package, then the software element should be taken as 25% of the total sales package value.
3. Expenses associated with "back Software Sales" will be met by MPI.
4. When, and if, other associates firstly make the original sale which includes the software, and secondly (if qualified) conduct the delivery of the software training, then Marcus will continue to receive 20% of the software package (i.e. 5% of the total sales value). This is to cover the "Marketing and management of software package and software maintenance".
5. If at any time and for any reason, Marcus ceases to be active as an associate of MPI, he would continue to receive half of this, that is 10% of the Software Package, (i.e. 2.5% of the total new sales value) on all sales where the software is included. This arrangement would continue until the accumulated income received by him from these sales equals £ 1 million. This agreement between [sic] would then cease. [Needless to say, I am not anticipating this being inactive! (sic)]
6. 100% of any income that Marcus gains from the provision of Decision Mapping services to the "old" Lucas shall be retained by him. [Again, needless to say, it will be in my interest to find all ways I can to leverage arrangements to gain the best terms for extension of the license agreement to the Varity part of LucasVarity.]
7. MPI agree to pay for the initial software development work to a) ensure that the Lucas Version 2.02 can be made and rapidly dispatched to replace the old version, and b) that the changes can be made to facilitate a reliable and cost effective "branding" process for each software client. This is now particularly significant as it may be that an alternative software partner to Workflo needs to be sought.
Marcus Hamilton 20/3/97
The following appears behind the appendix to Contract Letter A:
To MPI:
— 50% of new revenue flows from significant back Software sales.
— 50% of revenue flows from new sales of packages which include the software ad infinitum. This will come from increased unit value and, probably more significantly, an increased number of sales.
— Greatly enhanced perceived value (pre- and post-sale).
— Improved effectiveness of Decision Mapping process as the software helps facilitate it.
— Improved competitiveness of the offering.
— Improved image and position of the company. The software can be used as part of the new marketing communications initiative.
— Increased control of the Decision Mapping standards because they are "set" in the software.
— Contribution of an experienced new partner to help develop the market.
To Associates:
— Revenue on Back Sales (I suggest associates get 10%, if they are still active, as per their agreements)
— Use of the software as a powerful communication and selling tool. It considerably enhances the value of the package making it a much easier package to sell, therefore increasing sales revenue and reducing sales costs.
— Use of the software on [sic] the workshops (once the client has bought the Software License). It is an effective teaching aid.
— Improved customer value as the software facilitates a good mapping process — managing the developing map and onward communications to win.
— Free presentation packages will be provided for marketing support, demonstrating the best way of using the software for selling and using in the training.
— Sales only have to increase by over 22.5% (more units or higher average unit value) for an associate to increase his net income. Current thinking suggests a figure of 50% or more would be quite realistic. The Associate also has the choice of not including the software in the package.
plaintiff sent a second letter on March 24, 1997 ("Contract Letter Be). Contract Letter B was addressed to Defendant Hodapp and sent by facsimile. Plaintiff wrote as follows:
Dear Richard
Good morning. I hope you had a good weekend. I spoke with Andy on Saturday before he left for France and decided it was best not to bother you over the weekend.
Our Agreement
I am keen to get things sorted, today if possible, so that I can unequivocally start working for MPI. I am seeking your agreement in writing to the deal we have arrived at that I have set down in my note of 20/3/97.
In talking to Andy, I [sic] there seem to be a few points that it would be helpful for me to clarify.
— On point 3., I understood from our conversation on 10th March that you would pay the expenses associated with back Software sales. Specifically we were talking of Air fares and hotel bills. This is important to me as I do not want there to be a barrier to developing these sales in the early stages. obviously it is best if we can get the customer to cover these and this should be part of our campaign plan that I would imagine we would be working out together. The customer's preparedness to pick up this tab might have to be one of the criteria for deciding who to go after first.
— The other area of the agreement that I felt was still a bit grey was my point 7b. The payment for the software changes necessary to facilitate a reliable and cost effective branding process. Andy says that you agree to this in principle and he understands that it must be done, and is somewhat urgent now because Workflo's long term participation is in question. If they do not become committed to a partnership I believe it would be a mistake not to get them to do this work to enable a reliable transition to an effective supplier. Whilst we have not got a figure from them on the cost, my best guess is that £ 5,000 would cover it.
— On the wording of the December letter that you are going to fax to me, the reason why "Marcus Hamilton and Roy Brookes" should not be mentioned in relation to copyright matters is that the only document containing these words in the copyright section is the map you have a copy of which was not printed until the end of January.
As you know, I am keen to get on and focus on generating substantial revenue for MPI and to do so I need the following:
— Fax/letter saying you agree with my fax and note of 20/3/97.
— Copy of ordinary Standard agreement for info (I understand that you are making a proper customized one to come later).
-The December letter (faxed at first for approval and then original sent for the file).
— Fax of Lucas contract (then a copy to be sent over for the file)
I am out until late afternoon and then will be back in the office and hope that we will be able to speak and you can fax me the materials. I have been asked to hand my car back after Easter and this symbolises my closing relationship with LucasVarity and stresses the urgency of the situation if I am to sort things out in the way we would like.
I look forward to speaking with you.
Best regards
/s/ Marcus Hamilton
PS. The following is my interpretation of Andy's note concerning the Wording on the printed maps. I have used the English spelling of authorised. Have I got the justification and the font right?
NOTE: Lucas Industries has purchased a license to use Decision Mapping ™. This material is limited to authorised use only and may not be used or reproduced in any form or incorporated in any part or in whole in any other materials without the written authorisation of Managing Process Inc.
TRADEMARKS: MAP, DECISION MAPPING ™ AND THE DECISION MAPPING PROCESS are registered Trademarks of Managing Process Inc.
COPYRIGHT © December 1996, Managing Process Inc.
The third letter that Plaintiff alleges constitutes a part of the agreement between him and MPI was written by Defendant Hodapp. The letter ("Contract Letter C") is dated March 23, 1997, but Plaintiff alleges that it was written on March 24, 1997, after Mr. Hodapp received Contract Letter B from Plaintiff. Defendants accept that allegation for purposes of their motion to dismiss. Contract Letter C is as follows:
Marcus:
The discussions you have had with Andy Crawford and myself, and the letter you sent regarding terms of our agreement for an association with you . . . are consistent with the License agreement we use with other associates, as it must be, for use to strike a working agreement and a productive relationship. This letter is to offer you an associate agreement based upon the terms we have discussed and to authorize you to proceed as an associate to develop Decision Mapping ™ business on behalf of MPI.
The basic agreement, with the terms of agreement defined, appropriate persentages for revenue generated, etc. is being prepared this week by our attorney and will be forwarded to you for signature.
Meanwhile the principles and the procedures you, Andy and I have discussed seem acceptable to both you and MPI, and we should get on with the business of getting busy.
I welcome your energy, professionalism, and experience to the band of professionals we refer to as "Partners of MPI", and wish this affiliation will be most productive for you . . . and a great deal of fun.
I look forward to speaking with you soon, and planning actions to generate the quality of business your contributions to Decision Mapping® deserve.
Best regards, /s/
Richard Hodapp President
Plaintiff alleges that Defendant MPI breached its agreement with Plaintiff by failing to make various payments required by Contract Letter A and by issuing a notice to Plaintiff on July 9, 1998 to desist from activities involving Decision Mapping. In the alternative to his claim for breach of contract, Plaintiff asserts a claim in quasi-contract forquantum meruit He alleges that he conferred a benefit upon MPI by providing services. He seeks compensation for those services. Plaintiff alleges that Defendants Hodapp and MPI defrauded him by virtue of representations made in Contract Letter C. He alleges that Defendants will be unjustly enriched in the event that Plaintiff is not given an accounting of the profits generated by the alleged breach of contract and fraud. Finally, Plaintiff alleges that Defendant MPI owes him not less than $21,448.23 on various accounts.
Defendants seek the dismissal, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, of all of Plaintiff's claims. They contend that Plaintiff has not stated a claim for breach of contract upon which relief may be granted, inasmuch as he has not properly alleged the existence of an enforceable contract. They contend that he cannot plead on the basis of quasi-contract or unjust enrichment in the alternative to a breach of contract claim. They contend that Plaintiff's fraud claim is nothing more than a restatement of his breach of contract claim. They further contend that Plaintiff's allegations in support of his claim for payment on an account are legally insufficient. Finally, they seek the dismissal of plaintiff's prayer for punitive damages in the event that any of plaintiff's claims survives the motion to dismiss.
B. The Rule 12(b)(6) Standard
The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief if all the facts and allegations in the complaint are taken as true. See Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993) (citing Nishiyama v. Dickson County, 814 F.2d 277, 279 (6th Cir. 1987)). To that end, for purposes of a motion to dismiss under the Rule, the complaint must be construed in the light most favorable to the nonmoving party and its allegations taken as true. See Scheuer v. Rhodes, 416 U.S. 232 (1974); Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995). To survive a motion to dismiss under Rule 12(b)(6), "a . . . complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (citations and internal quotation marks omitted). The test for dismissal under Rule 12(b)(6), however, is a stringent one. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hartford Fire Insurance Co. v. California, 509 U.S. 764, 811 (1993) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). See also Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1189 (6th Cir. 1996). Consequently, a complaint will not be dismissed pursuant to Rule 12(b)(6) unless no law supports the claim made, the facts alleged are insufficient to state a claim, or an insurmountable bar appears on the face of the complaint.
C. Analysis
1. The Breach of Contract Claim
Defendants correctly argue that Plaintiff can establish the existence of a contract between him and MPI only by demonstrating that a written agreement exists. Ohio's statute of frauds requires that such a contract be in writing. "A service contract of indefinite duration, in which one party agrees to procure customers or accounts or orders on behalf of the second party, is not by its terms performable within a year and hence must be in writing." Daup v. Tower Cellular, Inc., 136 Ohio App.3d 555, 565 (Franklin Cty. 2000) (internal quotations omitted).
Ohio's statute of frauds is codified at Ohio Revised Code § 1335.05. It provides, in pertinent part, as follows:
No action shall be brought whereby to charge the defendant . . . upon an agreement that is not to be performed within one year of the making thereof; unless the agreement upon which such action is brought, or some memorandum thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized.
Defendants contend that the alleged contract comprised of the three Contract Letters does not satisfy the requirements of the statute of frauds because no one lawfully authorized to act on behalf of MPI signed that agreement.
Plaintiff alleges that the three Contract Letters, which are set forth in full herein, constitute a contract between MPI and Plaintiff. "Multiple documents should be construed together if they are part of the same transaction." See Mantua Manufacturing Co. v. Commerce Exchange Bank, 75 Ohio St.3d 1, 5 (1996); Center Ridcie Ganley. Inc. v. Stinn, 31 Ohio St.3d 310, 314 (1987). The statute of frauds does not require that all documents comprising the agreement be signed by all parties to the agreement. See, e.g., Soteriades v. Wendy's of Fort Wayne, Inc., 34 Ohio App.3d 222, 225 (Franklin Cty. 1986) ("[t]he memorandum in writing satisfying the requirement of the Statute of Frauds may consist of several related writings, even though only one such writing is signed, if the signed writing refers to the unsigned writing or if it appears by inspection and comparison of the writings that they logically relate to or form part of the same transaction"). "The memorandum satisfies the Statute of Frauds if it (1) identifies the subject matter, (2) establishes that a contract has been made, and (3) states the essential terms with reasonable certainty." North Coast Cookies, Inc. v. Sweet Temptations, Inc., 16 Ohio App.3d 342, 348 (Cuyahoga Cty. 1984).
plaintiff is correct in his assertion that the statute of frauds does not require that an agreement be contained entirely within one document. Moreover, the alleged contract in this instance clearly satisfies the first requirement set forth above. It identifies the subject matter of the agreement: plaintiff's association with MPI. See North Coast Cookies, 16 Ohio App.3d at 348. The Court must determine whether the alleged contract comprised of the three Contract Letters satisfies the second and third requirements set forth above. Specifically, the Court must determine whether the Contract Letters establish that a contract has been made and state the essential terms of that contract with reasonable certainty. See id.
In order to determine whether the language of the Contract Letters establishes that a contract has been made, the Court refers to Contract Letter C, which, Plaintiff alleges, is Defendant Hodapp's response on behalf of Defendant MPI to Plaintiff's previous two letters. In Contract Letter C, Mr. Hodapp states that the purpose of his letter "is to offer you an associate agreement based upon the terms we have discussed and to authorize you to proceed as an associate . . . on behalf of MPI." He further states that "[t]he basic agreement, with the terms of agreement defined, appropriate persentages for revenue generated, etc. is being prepared . . . ." Finally, he states that "the principles and the procedures you, Andy and I have discussed seem acceptable to both you and MPI, and we should get on with the business of getting busy."
The Court notes that Defendant Hodapp does not state, in Contract Letter C, that the terms of compensation outlined by plaintiff in the appendix to Contract Letter A are acceptable to MPI. Rather, he states that the agreement will be upon terms the parties have discussed with "appropriate persentages for revenue generated."
Defendant Hodapp expresses agreement with "the principles and procedures" the parties have previously discussed, however, leading to a conclusion that the parties had had a meeting of the minds with regard to those principles and procedures, if not with regard to the terms of compensation. He suggests, after giving voice to that agreement, that Plaintiff should "get on with the business of getting busy." Those words establish the existence of some agreement and persuade the Court that the second requirement, language in a signed writing that establishes that a contract has been made, is satisfied. See North Coast Cookies, 16 Ohio App.3d at 348.
The Court concludes, nevertheless, that the Contract Letters do not satisfy all of the requirements of the statute of frauds. In order to do so, they must state the essential terms of the contract with reasonable certainty. See id. While Plaintiff sets forth proposed compensation terms in the appendix to Contract Letter A, Defendant Hodapp does not indicate in Contract Letter C that those terms are acceptable to MPI. Indeed, he promises only to include "appropriate" compensation terms in the basic agreement that he states will be forwarded to Plaintiff. Absent affirmative reference by Defendant Hodapp to the specific terms proposed by Plaintiff, the Court cannot conclude that those terms are included in the parties' agreement. Accordingly, the compensation terms of the alleged agreement are not stated with reasonable certainty.
The Court further notes that the terms with respect to which the parties appear to agree in the Contract Letters are not stated with reasonable certainty. As the Court has noted, Contract Letter C indicates that the parties have agreed to certain "principles" and "procedures." Those principles and procedures are not identified with clarity in any of the Contract Letters, however. Plaintiff's letters, Contract Letters A and B, include many specific terms or proposals, but Defendant Hodapp does not expressly agree to those terms or proposals in Contract Letter C. None of the terms of the alleged agreement are identified with clarity by Defendant Hodapp or explicitly accepted by him. Only the subject matter is identified with certainty. The Court concludes that the writings in question do not satisfy the statute of frauds.
Plaintiff contends that, even if the statute of frauds applies, the doctrine of part performance removes the contract in question from the operation of the statute. In Hodges v. Ettinger, 127 Ohio St. 460 (1934), the Ohio Supreme Court held as follows:
The doctrine of part performance can be invoked, to take a case out of the statute of frauds in Ohio, only in cases involving the sale or leasing of real estate, wherein there has been a delivery of possession of the real estate in question, and in settlements made upon consideration of marriage. Such doctrine of part performance has no place in the law governing contracts for personal services.Id. at syllabus. That court has not reversed its position with regard to the applicability of the doctrine of part performance to contracts for personal services. While other Ohio courts have recognized an estoppel defense to the statute of frauds in the context of full performance of a contract by one party, Plaintiff has neither alleged full performance nor asserted an estoppel defense to the statute of frauds. See Gathagan v. Firestone Tire Rubber Co., 23 Ohio App.3d 16, 18 (Summit Cty. 1985). The Court concludes that Plaintiff may not rely upon the part performance doctrine to remove the alleged contract from the operation of the statute of frauds.
Plaintiff also contends that Defendants' motion to dismiss is untimely, with respect to his breach of contract claim, and that Defendants waived their right to move for the dismissal of the complaint pursuant to Rule 12(b)(6) by failing to do so in response to Plaintiff's initial complaint. Neither contention is well-supported or well-taken. The Court concludes that Defendants' motion to dismiss plaintiff's breach of contract claim is meritorious.
2. The Quasi-Contract and Unjust Enrichment Claims
Defendants also seek the dismissal of Plaintiff's second claim, which is a claim for quantum meruit, and his fourth claim, which is a claim of unjust enrichment. They argue, first, that Ohio law does not permit a plaintiff to plead breach of contract, on the one hand, and implied contract or unjust enrichment in the alternative. They then argue that Plaintiff has not alleged facts in satisfaction of the elements of a claim in quasi-contract under Ohio law.
Under Ohio law, a party may not seek remedies under quasi-contractual theories of recovery when an express contract governs the relationship of the parties. See Davis Tatera. Inc. v. Gray-Syracuse, Inc., 796 F. Supp. 1078, 1085 (S.D. Ohio 1992) (citing Wall v. Thompson, No. CA 2777, 1991 WL 216401 (Clark Cty. Ct. App. Oct. 18, 1991); Ryan v. Rival Manufacturing Co., No. C-810032, 1981 WL 10160 (Hamilton Cty. Ct. App. Dec. 16, 1981)). Because this Court has concluded that an express contract does not govern the parties' relationship, however, the rule applied in Davis Tatera does not apply to Plaintiff's second and fourth claims, and Plaintiff is not barred from proceeding on those claims.
In Hummel v. Hummel, 133 Ohio St. 520, 525 (1938), the Ohio Supreme Court stated that liability in quasi-contract arises out of an obligation cast by law upon a person who receives benefits that he is not justly entitled to keep. The criteria for recovery under a quasi-contract theory are (1) a benefit conferred upon a defendant, (2) with the defendant's knowledge, (3) in circumstances in which retention of the benefit without payment would be unjust. See Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183 (1984). Contrary to Defendants' assertions, Plaintiff has alleged facts in satisfaction of each of those criteria.
At paragraph 17 of his amended complaint, Plaintiff alleges that he conferred a benefit upon Defendant MPI. The alleged benefit is further defined in paragraph 18 as "services." That allegation satisfies the first criterion.
plaintiff alleges that he has conferred a benefit upon both Defendants. In response to Defendants' motion to dismiss, however, he concedes that his claim is against Defendant MPI only.
He alleges, at paragraph 18, that Defendants knew the benefit was being conferred. Accordingly, he has alleged facts sufficient to satisfy the second criterion.
He also alleges that Defendant MPI's retention of the benefit conferred by Plaintiff would be unjust. The Court concludes that that allegation, in light of the other alleged facts, satisfies the third criterion set forth above and that Defendants' motion to dismiss Plaintiff's second and fourth claims is not well-taken.
3. The Fraud Claim
Defendants also move for the dismissal of Plaintiff's third claim, which is a claim for fraud. They contend that Plaintiff has not alleged facts that, if proved, would satisfy each of the elements of a claim of fraud under Ohio law.
In order to state a claim for fraud under Ohio law, a plaintiff must allege each of the following:
(1) a representation or, where there is a duty to disclose, concealment of a fact,
(2) which is material to the transaction at hand,
(3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred,
(4) justifiable reliance upon the representation or concealment, and
(5) a resulting injury proximately caused by the reliance.Burr v. Stark County Board of Commissioners, 23 Ohio St.3d 69, syllabus ¶ 2 (1986). Plaintiff bases his fraud claim upon Defendant Hodapp's March 1997 letter, which is fully set forth herein as Contract Letter C.
Having reviewed Contract Letter C in light of the arguments of the parties, the Court identifies the following representations by Defendant Hodapp:
(a) "[t]he basic agreement is being prepared this week by our attorney and will be forwarded to you for your signature";
(b) "the principles and the procedures you, Andy and I have discussed seem acceptable to both you and MPI"; and
(c) "I look forward to speaking with you soon and planning actions to generate the quality of business your contributions to Decision Mapping ™ deserve."
Those three representations satisfy the first element of the fraud claim.
The first two of those representations are, at least arguably, material to the transaction at hand, that is, the association between Plaintiff and MPI. The third representation relates only to Defendant Hodapp's personal feelings. It is not material to the transaction. Accordingly, only the first two representations satisfy the second element of the fraud claim.
Plaintiff has not alleged that the first representation, that the basic agreement would be prepared and forwarded to him, was made falsely. Accordingly, that representation does not satisfy the third element of the fraud claim.
He alleges that Defendant Hodapp falsely promised that payments would be made to Plaintiff consistent with the parties agreement as set forth in Contract Letter A and that that representation was false. While the Court is not convinced that the "principles" and "procedures" mentioned in the second representation are payment terms, the Court accepts, for purposes of the present motion, that Plaintiff has alleged that the second representation was made falsely. He has alleged generally that Defendant Hodapp knew the representations in his letter to be false. Accordingly, the second representation identified above satisfies the third element of the fraud claim.
Defendant Hodapp represented in his March 1997 letter to Plaintiff that certain unspecified "principles" and "procedures" seemed acceptable to Plaintiff and MPI. Plaintiff alleges that he relied upon the representations in that letter in acting on Defendant MPI's behalf to attempt to sell and promote its products and services. Any such reliance would not be justified.
Defendant Hodapp did not commit NFl to be bound by any specific payment term in his March 1997 letter. Plaintiff has attempted to import certain payment terms that he himself proposed into Mr. Hodapp's letter, but Defendant Hodapp did not state affirmatively in his letter that MPI intended to compensate Plaintiff in accordance with those terms. Reliance upon a vague statement that certain "principles" and "procedures" "seem" acceptable to begin working for compensation would be unreasonable and unjustifiable, particularly in light of accompanying statements that "appropriate" payment terms would be included in a basic agreement that would be prepared and forwarded to Plaintiff at a future date. The Court concludes, therefore, that Plaintiff has not alleged facts that, if proved, would satisfy the fourth element of the fraud claim. Defendants' motion to dismiss that claim is well-taken. because Plaintiff has conceded, in his memorandum in opposition to the motion to dismiss, that he can recover damages from Defendant Hodapp only on his fraud claim, Defendant Hodapp is properly dismissed as a party in this action.
4. The Claim on Accounts
Plaintiff's fifth claim is a claim on two alleged accounts. Plaintiff has attached two invoices to his amended complaint as exhibits. Defendants seek the dismissal of that claim on the ground that Plaintiff's complaint does not satisfy the requirements of Ohio law.
A plaintiff asserting a claim on an account must attach a copy of the account to the complaint. See Arthur v. Parenteau, 102 Ohio App.3d 302, 305 (Union Cty. 1995). A copy of an invoice does not constitute a copy of an account. See id.
Plaintiff has not appended copies of accounts to his complaint. Rather, he has appended copies of two invoices. His complaint is, therefore, legally insufficient, and Defendants' motion to dismiss his fifth claim is well-taken.
5. The Prayer for Punitive Damages
Defendants move for the dismissal of Plaintiff's prayer for punitive damages. In his memorandum in opposition to Defendants' motion, Plaintiff clarifies that he seeks punitive damages only with respect to his fraud claim. Because the Court has concluded that the fraud claim is subject to dismissal, the Court further concludes that Defendants' motion is well-taken as regards Plaintiff's prayer for punitive damages.
D. Conclusion
For the foregoing reasons, Defendants' motion to dismiss (Doc. 40) is GRANTED, in part, and DENIED, in part. Plaintiff's first, third, and fifth claims are DISMISSED and Defendant Hodapp is DISMISSED as a party. Plaintiff's prayer for punitive damages is also DISMISSED. This action will proceed on Plaintiff's second and fourth claims against Defendant MPI.
IT IS SO ORDERED.