COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71303 TWP, INC. : : ACCELERATED DOCKET : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : COACH & MOTOR COMPANY : OPINION : : PER CURIAM DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MAY 1, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-296384. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Louis A. Turi, Esq. 28833 Euclid Avenue P.O. Box 325 Wickliffe, OH 44092 For Defendant-Appellee: Martin W. Elson, Esq. Ulmer & Berne 1300 East 9th Street Suite 900 Cleveland, OH 44114-1583 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cuyahoga County Court of Common Pleas and the briefs of counsel. TWP, Inc., plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, in Case No. CV-296384, which granted the motion for summary judgment of Coach & Motor Company, defendant-appellee. Plaintiff-appellant assigns four errors for this court's review. Plaintiff-appellant's appeal is not well taken. TWP, Inc., plaintiff-appellant, is engaged in the sale of new and used motor vehicle parts. On May 2, 1990, plaintiff-appellant allegedly sold 1,916 starter and alternator cores to Coach & Motor Company, defendant-appellee, for the purchase price of $21,213.50. On December 17, 1990, plaintiff-appellant allegedly sold 819 additional starter and alternator cores to defendant-appellee for the purchase price of $9,728.00. Both invoices contained the following provision: A Service Charge of 1[-]l/2% per month will be charged on all unpaid invoices over 30 days from date of invoice. On October 6, 1995, plaintiff-appellant filed a complaint in the Cuyahoga County Court of Common Pleas seeking $30,941.50, plus ten percent interest per year, allegedly due on account from Coach & Motor Company for the 1990 transactions. Attached to the complaint were copies of the two invoices dated May 2, 1990 and December 17, 1990 respectively. -3- On March 1, 1996, Coach & Motor Company, defendant-appellee, filed its answer to plaintiff-appellant's complaint. Defendant- appellee set forth a number of affirmative defenses including the following: Plaintiff's Complaint is barred by the four year statute of limitations set forth in R.C. 1302.98 (UCC 2-725), which is applicable to this action. On March 27, 1996, the trial court conducted a pretrial hearing with the parties at which the following deadlines were established: defendant-appellee to file a motion for summary judgment on or before May 1, 1996; all discovery to be completed by August 20, 1996 and a jury trial was scheduled for September 5, 1996 at 9:15 a.m. On April 29, 1996, defendant-appellee filed its motion for summary judgment in which it was argued that plaintiff- appellant's complaint was barred by the four-year statute of limitations set forth in R.C. 1302.98 (UCC 2-725) for a contract for the sale of goods. On May 23, 1996, plaintiff-appellant filed its response and objection to defendant-appellee's motion for summary judgment in which it was argued that the account in question was a running account covering the years 1990 through 1994. Since continual payments had been made on the account, plaintiff-appellant maintained that the $30,941.50 demand contained in the complaint represented an overall balance on the account, not money owed on the two 1990 invoices attached to the original complaint. -4- Therefore, the four-year statute of limitations set forth in R.C. 1302.98 had not expired. That same day, plaintiff-appellant filed a motion to file an amended complaint instanter. The proposed amended complaint was to reflect plaintiff-appellant's contention that the account in question was a running account. The trial court did not rule upon plaintiff-appellant's motion for leave to file an amended complaint. On June 11, 1996, plaintiff-appellant filed a corrected amended complaint in spite of the fact that the initial motion for leave to file amended complaint still was not ruled upon. On June 21, 1996, plaintiff-appellant filed a supplemental memorandum objecting to defendant's motion for summary judgment in which plaintiff-appellant attempted to apply the banking principle of "first money in, first money out" (see 71 Ohio Jur.3d (1986, Supp. 1994), Negotiable Instruments, Section 273) to the accounts receivable fact pattern in this action. Defendant-appellee filed its reply brief on June 25, 1996. On August 19, 1996, the trial court granted defendant- appellee's motion for summary judgment. The journal entry stated: There being no issue as to any material fact in dispute, and viewing the evidence most strongly in favor of the Plaintiff, the Defendant is entitled to summary judgment as a matter of law. Defendant's motion for summary judgment (filed 4-29-96) is granted. Plaintiff failed to commence this action within the four-year statute of limitations -5- applicable to contracts for sale of goods (O.R.C. 1302.98, UCC 2-725). The trial court's entry was journalized on August 19, 1996. On September 20, 1996, plaintiff-appellant filed its notice of appeal from the August 19, 1996 judgment of the trial court. In its notice of appeal, plaintiff-appellant maintains that notice of the final order was not mailed by the trial court until August 27, 1996 and therefore the notice of appeal was timely filed pursuant to Civ.R. 58 and App.R. 4(A). Defendant-appellee does not dispute the timeliness of the notice of appeal. On appeal, plaintiff-appellant assigns four interrelated errors for this court's review. Plaintiff-appellant's first assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Plaintiff-appellant's second assignment of error states: THE TRIAL COURT ERRED IN HOLDING THAT THE ACTION ON ACCOUNT WAS NOT FILED TIMELY. Plaintiff-appellant's third assignment of error states: THE TRIAL COURT ERRED IN HOLDING THAT THERE WERE NO DISPUTED MATERIAL ISSUES OF FACT. Plaintiff-appellant's fourth and final assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT RELATIVE TO PORTIONS ONLY OF A CLAIM ON AN ACCOUNT. Having a common basis in both law and fact, this court shall consider plaintiff-appellant's first, second, third and fourth assignments of error simultaneously. -6- The central argument contained in plaintiff-appellant's appeal is based upon the assertion that the account in question between plaintiff-appellant and defendant-appellee was, in fact, a running account with a continuing balance existing over an extended period of time. Plaintiff-appellant attempts to support this assertion through an exhibit attached to its response and objection to defendant's motion for summary judgment, the proposed amended complaint and the proposed corrected amended complaint, which purports to be a listing of various purchases of defendant-appellee from plaintiff-appellant through the years 1990 to 1994. Plaintiff-appellant maintains that this unsubstantiated exhibit constitutes conclusive evidence of a running account with defendant-appellee precluding summary judgment pursuant to the statute of limitations set forth in R.C. 1302.98. It is plaintiff-appellant's position that, when dealing with a running account, the financial principle of "first money in, first money out," which is generally applied only to negotiable instruments and checking accounts, should be applied to the accounts receivable rendering any deficiency on the account to be applied to the last items purchased on the account. In this case, the application of the "first money in, first money out" principle would purportedly render the accrual date of the $30,941.50 debt at issue to be sometime in 1994, well within the four-year statute of limitations for the sale of goods. -7- Civ.R. 56(C) provides that before summary judgment may be granted, the court must determine that (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 (syllabus). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio App.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court recently discussed the proper standard to be applied when reviewing summary judgment motions. The court found as follows: Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for summary judgment. -8- See, e.g., Civ.R. 56(A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C). Id. at 298. This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. In the case sub judice, a review of the record demonstrates that the trial court properly granted the motion for summary judgment of Coach & Motor Company, defendant-appellee, since plaintiff-appellant's complaint was barred by the four-year statute of limitations for the sale of goods set forth in R.C. 1302.98. Initially, it must be noted that, although plaintiff- appellant refers to its proposed amended complaint and proposed corrected amended complaint throughout the appeal, the trial court never ruled upon plaintiff-appellant's motion for leave to file the amended complaint. It is well established that a motion which is not ruled upon by the trial court is considered overruled. See Solon v. Solon Baptist Temple, Inc. (1982), 8 Ohio App.3d 347. Therefore, this court will not consider the proposed amended complaint, the proposed corrected amended -9- complaint or the attached exhibits as they were not filed with leave of court as required under Civ.R. 15. Plaintiff-appellant is engaged in the business of selling after market motor vehicle parts. R.C. 1302.01(A)(8) defines the term "goods" as follows: "Goods" means all things (including specially manufactured goods) which are moveable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities, and things in action. *** Pursuant to R.C. 1302.01, the sale of automobiles, as well as automobile parts, falls within the definition of "goods" as they "are movable at the time of identification to the contract for sale." See, Fuqua Homes, Inc. v. Evanston Bldg. and Loan Co. (1977), 52 Ohio App.2d 399, 403; C.B. Transportation Services, Inc., et al. v. Bus and Bodies, Inc., et al. (August 15, 1994), Butler App. No. CA 94-02-030, unreported. R.C. 1302.98, which sets forth the statute of limitations for a contract for the sale of goods, provides in pertinent part: (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 reduce the period of limitation to not less than one year but may not extend it. (B) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when -10- the breach is or should have been discovered. Attached to plaintiff-appellant's original complaint were copies of two invoices dated May 2, 1990 and December 17, 1990. Each invoice contained a provision for a 1-l/2% service charge per month on all unpaid invoices over thirty days. This provision clearly implies that payment for the automotive parts listed was due upon receipt of the parts, not at an unspecified time in the future. Similarly, a review of Exhibit "A" to plaintiff's response and objection to defendant's motion for summary judgment demonstrates that payment for the automotive parts was made on an individual invoice basis. Exhibit "A," which purports to be a transactional summary of defendant- appellee's account with plaintiff-appellant, shows that numerous transactions occurred between the parties during the 1994 business year. Payment for these various transactions occurred approximately thirty days after the month's orders were completed. This further demonstrates that the account between the parties did not qualify as a running account as plaintiff- appellant alleges. Exhibit "A" is deficient in two other significant respects. It fails to set forth a beginning balance to the alleged running account and it fails to properly summarize, by means of a running balance, the amount claimed to be due. Without this required information, it cannot now be said that plaintiff-appellant has stated a valid action upon a running account. See, Arthur v. Parenteau (1995), 102 Ohio App.3d 302, -11- 305, citing to Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123. Lastly, plaintiff-appellant has failed to cite any relevant or compelling case law in support of its assertion that the banking principle of "first money in, first money out" should be applied to an accounts receivable situation. R.C. 1304.20(B), the statute plaintiff-appellant relies upon, clearly does not apply to the sale of goods but to the security interest of a collecting bank in documents or proceeds. Based upon the foregoing analysis, this court finds that the trial court properly granted the motion for summary judgment of defendant-appellee, Coach & Motor Company. Plaintiff-appellant's first, second, third and fourth assignments of error are not well taken. Judgment of the trial court is affirmed. -12- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas 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, PRESIDING JUDGE JAMES M. PORTER, JUDGE CHARLES D. ABOOD, JUDGE (Judge Charles D. Abood, Retired Judge of the 6th District Court of Appeals, sitting by assignment.) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .