COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72424 RELIANCE ELECTRIC COMPANY, Plaintiff-appellee and cross-appellant JOURNAL ENTRY vs. AND KJ ELECTRIC, OPINION Defendant-appellant and cross-appellee DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 3, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-284990 JUDGMENT: Affirmed in Part and Reversed in Part. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee and cross-appellant: BRETT K. BACON BRIAN T. JOHNSON THOMPSON HINE & FLORY LLP 3900 Key Center 127 Public Square Cleveland, Ohio 44114-1216 For defendant-appellant and cross-appellee: BRENDAN DELAY 323 Lakeside Avenue, West Suite 450 Cleveland, Ohio 44113 -2- KARPINSKI, J.: Defendant-appellant, KJ Electric Company ( KJ ), appeals from the judgment of the trial court which granted a directed verdict in favor of plaintiff-appellee, Reliance Electric Company, on KJ's counterclaim for damages resulting from Reliance's breach of an alleged partnership agreement. Reliance has filed a cross-appeal which argues that the trial court erred by granting a directed verdict in favor of KJ for money it owed to Reliance. For the reasons that follow, we affirm the judgment of the trial court regarding KJ's claim for damages. However, we find merit to Reliance's contention that the trial court erred by granting a directed verdict for KJ on Reliance's action on the account. The relevant facts follow. This dispute arose from the termination of a non-exclusive distributorship agreement under which KJ acted as Reliance's distributor of electric motors in the upstate New York area. The parties signed the agreement in 1989. The agreement provided that either side could terminate the agreement upon 30 days written notice. Reliance's position is that the relationship continued under this contract until 1994 when Reliance wrote to KJ and terminated the agreement. KJ claims that the 1989 contract was verbally terminated in 1991 but that a long-term relationship was thereafter defined by a pamphlet agreement between KJ and Reliance. KJ's position is that a pamphlet entitled A Statement Of Our Union, which was given to -3- Reliance distributors, constituted a new agreement between KJ and Reliance. After the 1994 termination letter, KJ returned inventory belonging to Reliance. Reliance then filed a complaint against KJ seeking a recovery of $55,772.31 based on past money owed to Reliance on their account with KJ. KJ responded by filing a counterclaim seeking damages for breach of the alleged long-term partnership agreement. The case proceeded to trial and a jury was empaneled. After each side presented its evidence, the trial court granted a directed verdict to KJ on the claim that it owed Reliance money on the account. Additionally, the court granted a directed verdict to Reliance on KJ's claim for damages based on breach of the agreement. KJ appeals, submitting three assignments of error. Reliance responds with a cross-appeal with one assignment of error. KJ's assignments will be addressed first. I. THE TRIAL COURT ERRED WHEN IT DIRECTED A VERDICT AGAINST THE COUNTERCLAIM BECAUSE THE STATUTE OF FRAUDS DOES NOT APPLY TO THIS TYPE OF AGREEMENT. In this assignment, KJ attacks the judgment of the trial court in granting a directed verdict to Reliance on KJ's claim for damages resulting from the alleged breach of the partnership agreement. As the focus of this assignment, plaintiff argues that the statute of frauds, Reliance's affirmative defense, does not apply to the instant case. Reliance responds by accurately pointing out that the trial court granted the directed verdict because plaintiff failed to establish (1) that the original agreement had been verbally canceled and (2) that the parties then -4- agreed to a long-term partnership as memorialized by the Reliance distributor pamphlet. The statute of frauds, Reliance argues, is merely an additional, not the primary, basis for granting the directed verdict in favor of Reliance on the counterclaim. Thus, even if KJ's argument regarding the statute of frauds had merit, it would not warrant a reversal of the directed verdict on the counterclaim. Notwithstanding this error, we will address KJ's argument regarding the statute of frauds. Ohio's statute of frauds is found in R.C. 1335.05 and states in relevant part as follows: No action shall be brought *** upon an agreement that is not to be performed within one year from the making thereof, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized. In the case at bar, KJ argued that the pamphlet agreement bound the parties. However, Reliance did not sign this purported contract. Therefore, along with asserting that there was no meeting of the minds regarding this pamphlet agreement, Reliance asserted the statute of frauds defense. KJ responds that the statute of frauds does not apply, because the partnership could be terminated or completed within one year. This argument, when viewed in the context of KJ's other claims, fails. In determining whether a contract will be performed within a year, courts should look to the intention of the parties. Ford v. Tandy Transportation (1993), 86 Ohio App.3d 364. KJ's position in this entire litigation is that the pamphlet agreement -5- constituted a long-term agreement. The record contains no evidence that either party intended any pamphlet agreement to last less than a year. Accordingly, the trial court did not err in applying the statute of frauds defense to KJ's attempt to recover damages under the pamphlet agreement. KJ's first assignment of error is overruled. II. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT APPELLANT KJ ELECTRIC'S DISCOVERY MOTIONS. In this second assignment KJ argues that the trial court erred in denying KJ's discovery motions. Reliance accurately points out that our review of this ruling is limited to the abuse of discretion standard. Mauzy v. Kelly Services, Inc. (1996), 75 Ohio St.3d 578. In their briefs, neither side is specific as to what discovery was or was not provided. Importantly, KJ, in support of its assignment, merely refers this court to the record below without specifically describing how the trial court abused its discretion and what requested discovery was not provided. App.R. 12(A) requires appellate counsel to specifically point out and separately argue errors in the record. In Harris v. Browning- Ferris Indus. of Ohio, Inc. (Mar. 16, 1989), Cuyahoga App. No. 55051, unreported, the court declined to address an appellate argument concerning discovery when the appellant failed to specify what was not provided and how the unprovided discovery prejudiced the appellant. The court stated as follows: The appellant has failed to specifically point out on appeal which exact discovery requests the court erred in regard to. She has further failed to argue as to why the court erred as to each specific discovery request. It is not the job of this court to wade through the record, -6- attempt to surmise which of appellant's discovery were considered by the appellant to be relevant to punitive damages, attempt to set forth why the appellant considered those requests pertinent to punitive damages, attempt to determine why the appellees opposed those requests, and only then determine whether the trial court abused its discretion as to those requests. Since the appellant has not set forth separate arguments for each discovery request at issue, we decline to address appellant's argument. Harris at 5. Accordingly, because KJ has failed to specify what was not provided and how they were prejudiced, the second assignment of error is overruled. III. THE TRIAL COURT ERRED WHEN IT DID NOT PERMIT AN AMENDMENT TO ADD THE DEFENSE OF FORUM NON CONVENIENS [sic] BECAUSE NEW YORK SUBSTANTIVE LAW MUST BE APPLIED TO THE MERITS. In this assignment, KJ argues that the trial court erred in denying its motion to amend to add the defense of forum non conveniens. This assignment lacks merit. The doctrine of forum non conveniens provides that a court that has jurisdiction may decline jurisdiction in favor of another court. Chambers v. Merrell-Dow Pharmaceuticals, Inc. (1988), 35 Ohio St.3d 123. The trial court's decision not to apply this doctrine is reviewed under the abuse of discretion standard. Id. In the instant case, the court did not abuse its discretion in not allowing KJ to raise this question. Even though the case was pending for over a year and a half, KJ waited until one month before trial to challenge the court's jurisdiction. This tardiness, alone, is reason to deny KJ's request. Additionally, KJ argues that the trial court would not be the appropriate court -7- because it would have to apply New York law. This argument fails. First, a trial court need not resort to conflict of laws principles unless there is an actual conflict between Ohio law and that of the other jurisdiction. Akro-Plastics v. Drake Indus. (1996), 115 Ohio App.3d 221. While arguing that New York law applies, KJ has not demonstrated any conflict between New York and Ohio law. More importantly, even if New York law did apply, the trial court would still be competent to apply that law via conflict of laws principles. Accordingly, KJ's third assignment of error is overruled. Reliance's lone assignment in support of its cross-appeal states as follows: I. THE TRIAL COURT ERRED BY GRANTING APPELLANT/CROSS- APPELLEE'S OHIO RULE 50 MOTION FOR A DIRECTED VERDICT BASED UPON THE OHIO DOCTRINE OF ACCORD AND SATISFACTION. In this assignment, Reliance argues that the trial court erred in granting a directed verdict in favor of KJ on the claim that it owed Reliance on its account. The trial court agreed with KJ's defense of accord and satisfaction. Because reasonable minds could differ as to whether KJ satisfied the requirements necessary for accord and satisfaction, however, we find merit to this assignment and reverse the judgment of the trial court. Reliance claimed that KJ owed it over $55,000 from the distributor relationship. In response to this claim, KJ sent a check to Reliance for $28,638.00. On the back of the check KJ wrote, Payee accepts this amount in full settlement of all claims against KJ Electric. The check was sent to the location where all -8- the payments to Reliance are processed, and Reliance cashed the check. Upon noticing the endorsement, however, Reliance immedi- ately issued a refund check to KJ and stated that Reliance did not accept the KJ check as full satisfaction of the amount owed on KJ's account. Under Ohio's accord and satisfaction statute, R.C. 1303.40(B)(2), a claim is not discharged if the payee, within 90 days, tenders repayment to the party against whom the claim is asserted. This appears to be precisely what Reliance did. Reliance's action indicates that it never intended the $28,000 check to satisfy the debt. KJ argues that this argument fails because R.C. 1303.40(B)(2) does not apply if the payee sends payment as directed by the claimant. This argument is specious. The accord and satisfaction statute is designed to prevent surreptitious satisfaction of a claim. This is precisely what KJ attempted when it sent its check with the accord and satisfaction language to the processing location. Reliance immediately responded by returning the check and stating that it did not agree to this amount. Accordingly, because reasonable minds could differ regarding whether the check constituted an accord and satisfaction, Reliance's cross-assignment of error is well-taken. Judgment affirmed in part and reversed in part. -9- This cause is affirmed in part and reversed in part. It is, therefore, ordered that appellant and appellee share the costs herein taxed. 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. JOSEPH J. NAHRA, P.J., and MICHAEL J. CORRIGAN, J., CONCUR. DIANE KARPINSKI JUDGE 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 of decision by the .