COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60133 KHALID QURESHI & ASSOCIATES, INC. : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION DOREEN CANZONI : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 9, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 180904 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: MARY G. BALAZS JAMES A. BUDZIK Johnson, Balazs & Angelo 3600 Terminal Tower Cleveland, Ohio 44113 For Defendant-Appellee: GERALD R. STACHEWICZ Garfield Hts. Executive Bldg. 5251 Turney Road Garfield Heights, Ohio 44125 - 2 - KRUPANSKY, J.: Plaintiff-appellant Khalid Qureshi & Associates, Inc. appeals from a trial court order granting summary judgment in favor of defendant-appellant Doreen Canzoni in plaintiff's action for a brokers commission allegedly due under an exclusive listing agreement for the sale of a business formerly owned by defendant. Plaintiff commenced the case sub judice in the trial court December 13, 1989 after dismissing a prior identical action which a non-binding arbitration panel had recommended be dismissed on the merits. Plaintiff's predecessor in interest entered into the listing agreement with defendant upon which these actions were based March 25, 1985 to assist in the sale of a candy business known as Sweet Beginnings. However, since defendant had already begun negotiations with a potential purchaser by the name of Burt Miles, the standard form listing agreement contained the following hand-written exclusion: THIS LISTING EXCLUDES BURT MILES &/OR MILES CAKE & CANDY FOR 45 DAYS. This forty five day exclusionary period (the "45 Day Exclusion Period") was to be in effect from March 25, 1985 to May 9, 1985. The business was eventually sold to Burt and Louise Miles for $90,000 and plaintiff claimed a 12% commission on the sale or $10,800 due under the Agreement. The parties dispute whether the transaction between defendant and the purchaser of the business occurred within the 45 Day Exclusion Period. - 3 - Defendant filed a motion for summary judgment claiming (1) the case sub judice was barred by the statute of limitations and/or doctrine of laches and (2) the transaction between defendant and the purchaser of the business occurred on May 6, 1985 within the 45 Day Exclusion Period. A copy of the agreement between defendant and the subsequent purchaser of the business dated May 6, 1985 and a $1,000 deposit check bearing the same date were attached to defendant's motion for summary judgment. Plaintiff's brief in opposition argued the case sub judice was timely commenced in the trial court and the business was sold pursuant to a Purchase Agreement executed by defendant and the purchaser on July 31, 1985 after the 45 Day Exclusion Period had expired. Plaintiff argued the prior May 6, 1985 agreement between defendant and the purchaser was merely an option to purchase the business which was not exercised until the parties executed the subsequent Purchase Agreement. The trial court granted defendant's motion for summary judgment in an order journalized June 19, 1990 without specifying the basis for its decision. Plaintiff timely appeals raising one assignment of error subdivided into two issues. Plaintiff's first issue relates to the statute of limitations and laches defenses as follows: THE LISTING AGREEMENT IS A SERVICE CONTRACT AND A CONTRACT IN WRITING WHICH THEREFORE, IS SUBJECT TO THE FIFTEEN YEAR STATUTE OF LIMITATION UNDER O.R.C. 2305.06 AND NOT A SALES CONTRACT SUBJECT TO A FOUR YEAR STATUTE OF LIMITATIONS AND SUMMARY JUDGMENT IS, THEREFORE, NOT APPROPRIATE. - 4 - Plaintiff's first issue has merit. Plaintiff argues an action for breach of the parties' listing agreement is governed by the fifteen year written contract limitations period set forth in R.C. 2305.06 rather than the shorter limitations period of four years for "contracts for sale" under the Uniform Commercial Code (the "U.C.C.") set forth in R.C. 1302.98. Plaintiff likewise argues defendant produced no evidence of material adverse prejudice to invoke the doctrine of laches. Defendant's brief on appeal does not address either 1 argument. Statute of Limitations R.C. 2305.06 establishes the limitations period governing written contracts as follows: Except as provided in section 1302.98 of the Revised Code, an action upon a specialty or an agreement, contract, or promise in writing shall be brought within fifteen years after the cause thereof accrued. (Emphasis added). Defendant argued to the trial court the following four year limitations period governing contracts for sale set forth in R.C. 1302.98 barred plaintiff's claim for the commission under the listing agreement: 1 Defendant's brief merely contends plaintiff's brief in opposition to defendant's motion for summary judgment was not timely filed in the trial court. However, our review of the record demonstrates the trial court granted plaintiff until May 25, 1990 to respond to defendant's motion, and plaintiff filed its brief in opposition May 24, 1990. - 5 - (A) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may produce the period of limitation to not less than one year but may not extend it. (Emphasis added). However, we conclude a listing agreement with a broker does not constitute a "contract for sale" of goods within the scope of the U.C.C or R.C. 1302.98. A broker under a listing agreement agrees to provide services and is not a seller of goods under U.C.C. Article 2. Consequently, the fifteen year statute of limitations for written contracts applies to actions for the breach of such agreements. R.C. 2305.06. Doctrine of Laches Defendant argued to the trial court the defense of laches barred the action sub judice since plaintiff commenced but subsequently dismissed identical litigation under the listing agreement three years prior to commencing this action and failed to offer any reason for the delay. However, we conclude defendant failed to produce any evidence of special circumstances resulting in material adverse prejudice to defendant to warrant invoking the doctrine of laches prior to the expiration of this fifteen year limitations period set forth in R.C. 2305.06. See, Thirty-Four Corp. v. Sixty- Seven Corp. (1984), 15 Ohio St. 3d 350. Mere delay in asserting a right does not of itself constitute laches. Id. at syllabus, paragraph two. - 6 - To successfully assert a defense of laches, defendant must demonstrate all the following: (1) a delay or lapse of time by plaintiff in asserting a right; (2) the absence of an excuse for such delay; (3) plaintiff's knowledge of the injury and (4) material adverse prejudice to defendant resulting from the delay. Kennedy v. Cleveland (1984), 16 Ohio App. 3d 399, 403. Failure to produce evidence of material adverse prejudice precludes summary judgment in favor of defendant. Jones v. Jones (Oct. 31, 1985), Cuyahoga App. No. 49676, unreported, at 9-10, (reversing summary judgment on this basis). Accordingly, plaintiff's first issue under his sole assignment of error is well-taken. Plaintiff's second issue follows: MATERIAL ISSUES OF FACT REMAIN TO BE LITIGATED CONCERNING THE DATE OF THE SALE OF THE SWEET BEGINNINGS BUSINESS WHICH PRECLUDED THE GRANTING OF SUMMARY JUDGMENT. Plaintiff's second issue lacks merit. Plaintiff contends the trial court erred in granting summary judgment in favor of defendant since the agreement between defendant and the purchaser of the business dated within the 45 Day Exclusion Period on May 6, 1985 merely constituted an option to sell the business and not a completed sale. Plaintiff argues this agreement between defendant and the purchaser provided for the accompanying deposit to be refunded if the parties could not subsequently agree on the terms of the sale. - 7 - Plaintiff's claim for the brokers commission is based upon paragraph four of the listing agreement with defendant which provides as follows: Seller [defendant] agrees that the commission shall be immediately due and payable if the Seller, directly or indirectly, enters into a Purchase and Sale Agreement (however denominated) accepts a deposit or does any other act tantamount to a sale or contract to sell without written approval of Broker [plaintiff] and the cancellation or recision of any of the foregoing acts shall not act as a release of Seller for such liability. (Emphasis added). However, the listing agreement made this provision subject to the following 45 Day Exclusion Period: THIS LISTING EXCLUDES BURT MILES &/OR MILES CAKE & CANDY FOR 45 DAYS. Construction of the terms of a written contract such as the listing agreement in the case sub judice is a matter of law which may be resolved by the trial court on a motion for summary judgment. Latina v. Woodpath Development Co. (1991), 57 Ohio St. 3d 212; Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St. 2d 241, paragraph one of the syllabus; Seringetti Construction Co. v. Cincinnati (1987), 51 Ohio App. 3d 1, 4-5. Plaintiff failed to demonstrate that any of the terms of the listing agreement required a sale to the purchaser to be fully consummated or completed within the 45 Day Exclusion Period. Based upon our review of the listing agreement sub judice, we conclude the terms of the listing agreement did not require the sale to Burt Miles be fully consummated or completed within - 8 - the 45 Day Exclusion Period. Paragraph four and the handwritten exclusion provision of the listing agreement expressly provide that no commission was due and payable if defendant entered "into a Purchase and Sale Agreement (however denominated) accepts a deposit or does any other act tantamount to a sale or contract to sell" the business to Burt Miles within the forty-five day period prior to May 9, 1985. The record demonstrates defendant and Burt Miles entered into a definitive agreement concerning the sale of the business within the 45 Day Exclusion Period. Based upon the express terms of the listing agreement, defendant was entitled to summary judgment regardless of whether the May 6, 1985 agreement constituted an option to sell the business or a completed sale. Consequently, the trial court properly granted summary judgment in favor of defendant since any dispute concerning the date the sale was completed was not relevant to the litigation. Accordingly, plaintiff's second issue under his sole assignment of error is overruled. Judgment affirmed. - 9 - It is ordered that appellee(s) recover of appellee(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J., and SPELLACY, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .