COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60151 BEN GLASSMAN : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION SEYMOUR BERGER, et al : : Defendant-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 26, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 168,709 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: EDWARD I. STILLMAN WILLIAM E. BARTEL Attorneys at Law 1610 Euclid Avenue Cleveland, Ohio 44115 For Defendant-appellee JOHN P. WITRI Seymour Berger: Attorney at Law 3200 National City Center Cleveland, Ohio 44114 (Cont.) - 0 - (Cont.) For defendant-appellee ROBERT A. GOODMAN David Jacobson: RICHARD S. MITCHELL Attorneys at Law 100 Erieview Plaza, 27th Floor Cleveland, Ohio 44114 - 1 - ECONOMUS, J.: Plaintiff-appellant, Ben Glassman, appeals from the decision of the court of common pleas which granted the separate motions for summary judgment filed by defendant-appellee Seymour Berger and defendant-appellee David Jacobson. For the reasons that follow, we affirm. On April 27, 1989, appellant brought suit against appellees alleging breach of an oral business finders contract. Subse- quently, appellant amended his complaint to allege intentional interference with the instant business finders contract against appellee Jacobson. Appellee Berger duly answered and filed a counter-claim against appellant alleging abuse of process. Appellee Berger's counter-claim was dismissed without prejudice after appellant filed notice of the instant appeal. Appellee Jacobson also duly answered appellant's complaint. Thereafter, appellees filed separate motions for summary judgment. The relevant facts are as follows: In the fall of 1987, appellee David Jacobson (hereinafter "Jacobson") was looking for a business to purchase. Jacobson contends he first learned that the B. Berger Co. was available for sale through Art Weisman from the accounting firm of Peat, - 2 - Marwick. In any event, Jacobson contacted Lewis Goodman, then a Vice-President of National City Bank, to inquire whether Mr. Goodman knew of an entree into the Berger Co. Mr. Goodman in- formed Jacobson that he would have appellant, Ben Glassman, contact Jacobson to arrange a meeting with appellee Seymour Berger (hereinafter "Berger"), a shareholder of B. Berger Co. Eventually, appellant met with Berger, where appellant informed Berger of Jacobson's interest in the B. Berger Co. and informed Berger that he would expect Berger to pay a finder's fee if Jacobson purchased the B. Berger Co. Berger asked generally how much the fee would be, to which appellant replied he would let him know. Subsequently, appellant sent Berger a letter in which he set the fee at two and one-half percent of the sale price. Appellant never received a reply from Berger. Thereafter, appellant met with Jacobson regarding the pos- sible purchase of B. Berger Co. At this meeting, appellant informed Jacobson that he would expect a finder's fee from some- one, but never stated he had a contract with Berger for a finder's fee. It is undisputed that the B. Berger Co. was sold to an investment company of which Jacobson was a partial owner. Based on the above evidence, the trial court granted appel- lees' motions for summary judgment. Appellant timely appeals, raising two assignments of error for our review. - 3 - Appellant's first assignment of error states: THE TRIAL COURT ERRED, TO THE DETRIMENT OF PLAINTIFF-APPELLANT BEN GLASSMAN, IN GRANTING DEFENDANT-APPELLEE SEYMOUR BERGER'S MOTION FOR SUMMARY JUDGMENT AS THERE EXISTED GENUINE ISSUES OF MATERIAL FACT TO BE DETERMINED BY THE TRIER OF FACT. Appellant contends he had a valid oral business finders con- tract with Berger. Alternatively, appellant contends he is enti- tled to recovery under the Ohio Supreme Court's holding in Legros v. Tarr (1989), 44 Ohio St. 3d 1. This argument lacks merit. "A business finder is one who finds, interests, introduces, and brings parties together for a transaction that they them- selves negotiate and consummate. A finder is an intermediary or middleman who is not necessarily involved in negotiating any of the terms of the transaction." Id., at 5. In express contracts, the assent to terms is actually ex- pressed in offer and acceptance. Id., at 6. In the present case, appellant offered to enter into a business finder's con- tract, but Berger never accepted. Appellant merely stated that he expected a fee and followed through with a letter to Berger stating his fee would be two and one-half percent of the sale price. However, Berger never agreed to pay any fee, let alone a fee of two and one-half percent of the sale price. Consequent- ly, no express contract existed. Appellant relies on paragraph two of the Ohio Supreme Court's decision in Legros, supra: - 4 - Although a party to an acquisition is ordi- narily held to have no liability to a busi- ness finder in the absence of a contract, express or implied in fact, to pay for such finder's services, an exception exists where the party or its agent misappropriates the finder's proprietary information and uses it to such party's benefit, in which case an agreement to pay may be implied in law and the finder can recover in quantum meruit. Appellant's reliance on Legros is unpersuasive. In Legros, the court noted, "It is also clear that appellant's [Legros' former employer the Butcher & Singer, Inc.) services were not volunteered, but followed from a valid finder's agreement with Union Metal, through Tarr, its former agent." Id., at 7. Thus, the agent (Legros) misappropriated the finder's (Butcher & Sing- er's) proprietary information gained from a valid business finder's contract entered into between Butcher & Singer and Union Metal. In the present case, no valid business finder's contract exists from which proprietary information could be misappropri- ated. Rather, appellant volunteered information hoping to obtain a finder's fee. However, Berger never agreed to pay a finder's fee. Accordingly, appellant's first assignment of error is over- ruled. - 5 - Appellant's second assignment of error follows: THE TRIAL COURT ERRED, TO THE DETRIMENT OF PLAINTIFF-APPELLANT BEN GLASSMAN, IN GRANTING DEFENDANT-APPELLEE DAVID JACOBSON'S MOTION FOR SUMMARY JUDGMENT AS THERE EXISTED GENUINE ISSUES OF MATERIAL FACT TO BE DETERMINED BY THE TRIER OF FACT. Appellant argues that Jacobson's letter representing to Berger that no business finders were involved in the transaction to purchase the B. Berger Co. caused Berger to cease his rela- tionship with appellant. This argument lacks merit. The tort of "business interference" occurs when a person, without a privilege, induces or otherwise purposely causes a third party not to enter into, or continue, a business relation- ship, or perform a contract with another. Juhasz v. Quik Shops, Inc. (1977), 35 Ohio App. 2d 51, paragraph two of the syllabus. Appellant bases his entire claim of business interference on Jacobson's letter to Berger representing that a finder was not used in connection with the sale of B. Berger Co. However, it is undisputed that Jacobson and appellant never entered into any type of finder's agreement or arrangement. If, as appellant claims, a finder was used, the arrangement was between appellant and Berger, and not appellant and Jacobson. Thus, Berger would have been well aware that a finder was used. As such, Jacobson's representation to Berger, that a finder was not used, could not have caused Berger to terminate his relationship with appellant. Furthermore, the only evidence which would indicate that Jacobson knew of a finder was appellant's statement to Jacobson that he - 6 - would expect a finder's fee should a sale of B. Berger Co. take place. However, appellant never informed Jacobson of a finder's fee contract because, as appellant admitted in his deposition, no agreement was ever reached between himself and Berger. Thus, Jacobson's representation to Berger could not have caused Berger to terminate a relationship with appellant, if indeed one did exist. Accordingly, appellant's second assignment of error is over- ruled. Judgment affirmed. - 7 - It is ordered that appellees recover of appellant their costs herein taxed. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas 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. NAHRA, P.J. JOHN F. CORRIGAN, J. CONCUR JUDGE PETER ECONOMUS* *Sitting by Assignment: Peter Economus, Judge of the Mahoning County Court of Common Pleas. 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .