COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72632 BROADWAY RESOURCE SUPPLY, INC. : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION WEST END LAND DEVELOPMENT INC. : ET AL. : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-310558 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: PAUL A. GRAU (#0004309) LINDA A. LEGGETT (#0052136) REDDY, GRAU & MEEK 5306 Transportation Blvd. Garfield Heights, Ohio 44125 For Defendants-Appellees: LINDA L. BLUSO (#0013997) HAROLD R. RAUZI (#0042053) 1400 Bank One Center 600 Superior Avenue Cleveland, Ohio 44114-2652 SPELLACY, J.: Plaintiff-appellant Broadway Resource Supply, Inc. ( appellant ) appeals from the Civ.R. 12(B)(6) dismissal of its complaint for money only and on account filed against defendants- -2- appellees West End Land Development, Inc. and Nicholas Rossi ( West End ). Appellant assigns the following error for review: I. THE LOWER COURT ABUSED ITS DISCRETION WHEN IT DISMISSED APPELLANT'S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED. Finding the appeal to lack merit, we affirm the judgment of the trial court. I. On June 19, 1996, appellant filed a complaint against West End and Nicholas Rossi, West End's statutory agent, for breach of contract and to recover the balance owed on an open account. In its complaint, appellant averred that it had purchased all of the assets of Saints Supply, Inc., including the accounts receivable. Appellant stated that Saints Supply entered into an oral contract with West End in 1987 for the sale to West End of underground waterline materials. Saints Supply invoiced West End for the goods in the amount of $52,289.00. After a series of credit memos were issued, the balance owed Saints Supply by West End was $28,058.12. Appellant attached to its complaint a number of invoices, credit memos, and what appeared to be a statement of an account. West End filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. West End asserted that appellant's claims were governed by the Uniform Commercial Code and were barred by the four-year statute of limitations found in R.C. 1302.98(A). West End also argued that appellant's complaint failed to state a claim against Nicholas -3- Rossi because appellant did not allege any contractual relationship existed between Rossi and appellant or Saints Supply. Appellant countered West End's motion by arguing that the cause of action did not accrue until West End refused to pay the balance on its account. That breach occurred after the last credit memo was issued in 1995. Appellant further maintained that open and running accounts are subject to a six-year statute of limitations. The trial court granted West End's Civ.R. 12(B)(6) motion to dismiss. Appellant has appealed from that judgment. II. In its assignment of error, appellant contends the trial court erred in dismissing its complaint as it is not apparent from the face of the complaint that appellant's claims were time-barred. Appellant has not appealed the dismissal of its claims for breach of contract or the dismissal of defendant Nicholas Rossi. Those claims are not before this court. Appellant asserts that a six- year statute of limitations applies to its cause of action for a running account and not the four-year statute of limitations as argued by West End. Appellant states that, because its complaint reflects a sale between the parties in 1991 and for credit in 1995, its claim was filed well within the statutory limit. Civ.R. 8(A)(1) only requires a short, plain statement of the plaintiff's claim showing that the pleader is entitled to relief. A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the -4- sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. Of Commrs. (1992), 65 Ohio St.3d 545. It is not a judgment on the merits of the case. Plummer v. Hose (1993), 83 Ohio App.3d 392. For a court to dismiss a complaint for failure to state a claim upon which relief can be granted under Civ.R. 12(B)(6), it must appear beyond doubt from the complaint that the plaintiff can not prove a set of facts entitling it to relief. Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 230. When assessing the sufficiency of a complaint, the court must take all of the factual allegations of the complaint as being true and all reasonable inferences must be drawn in favor of the nonmoving party. Byrd v. Faber (1991), 57 Ohio St.3d 56, 60. A complaint should not be dismissed because the trial court doubts the plaintiff will prevail on the merits. Slife v. Kundtz Properties (1974), 40 Ohio App.2d 179. Appellant argues that it proved an open account existed between itself and West End to a sufficient degree to survive a motion to dismiss. Civ.R. 10(D) requires that any claim on an account must be supported by a copy of the account attached to the complaint. Appellant's Exhibit C to its complaint purports to be a copy of the account. It shows a balance of $5,727.52 for its first entry based on an invoice for that amount issued May 27, 1987. Several other invoices are noted and a running balance appears in the right column. The last sale to West End occurred on November 22, 1991. That is followed by several notations for credit memos. The last credit was given on March 22, 1995. -5- Civ.R. 10(D) does not detail what the account attached to the pleading must contain. Climaco, Seminatore, Delligatti & Hollenbaugh v. Carter (1995), 100 Ohio App.3d 313. Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, set forth the requirements for an account: An account must show the name of the party charged. It begins with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance claimed to be due. Id. at 126. An account may be defined as an unsettled claim or demand by one person against another, based upon a transaction creating a debtor and creditor relation between the parties which is usually but not necessarily represented by an ex parte record kept by one or both of them. American Security Service, Inc. v. Baumann (1972), 32 Ohio App.2d 237, 242. An account is a pleading device used to consolidate several different claims which one party has against another. An action on an account is appropriate where the parties have conducted a series of transactions for which a balance remains to be paid. AMF, Inc. v. Mravec (1981), 2 Ohio App.3d 29. The account need not be admissible at trial. Id. When the account is not admitted by the opposing party, whether an action on an account exists is primarily a matter of proof. Equitable Life Assur. Soc. v. Kuss Corp. (1984), 17 Ohio App.3d 136. -6- Exhibit C to appellant's complaint shows the names of both parties, begins with a zero balance, reflects a series of transactions between appellant and West End, and records a running balance. Therefore, Exhibit C was sufficient to withstand a Civ.R. 12(B)(6) motion to dismiss on the basis of complying with Brown, supra. It is appellant's position that, because of the running account between the parties, a six-year statute of limitations applies. Appellant supports its contention by citing to Riddle v. Riddle(1929), 38 Ohio App. 132, in which the Delaware County Court of Appeals applied a six-year statute of limitations to an action on an account. However, Riddle was decided well before the adoption of the Uniform Commercial Code. R.C. 1302.98(A) provides the statute of limitations for the sale of goods. R.C. 1302.98(A) states that an action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. In TWP, Inc. v. Coach & Motor Co. (May 1, 1997), Cuyahoga App. No. 71303, unreported, this court found that a running account did not exist between the parties. However, the parties argued that the statute of limitations set forth in R.C. 1302.98(A) would apply to a running account and this court appeared to accept that argument. Clearly a sale of goods took place in the instant case which would bring the transactions between the parties under the four-year statute of limitations found in R.C. 1302.98(A). Although appellant did meet its burden in showing that a running account -7- existed between the parties, appellant had four years in which to file suit after the cause of action accrued. The final determination to be made is when the cause of action accrued. The last sale between the parties took place on November 22, 1991. The final credit memo was issued on March 22, 1995. In Kondrat v. Morris (1997), 118 Ohio App.3d 198, this court held that payments on a note used to finance the sale of a security did not extend the statute of limitations. The payments did not affect the finality of the sale but represented the fulfillment of an obligation which was separate and apart from the sale. The reasoning of Kondratis analogous to the instant case. The statute of limitation began to run on the date of the last sale of goods between the parties. Appellant had four years after November 22, 1991, in which to bring its cause of action against West End. Because appellant filed its complaint on June 19, 1996, the action is time barred. Appellant's assignment of error is not well-taken. Judgment affirmed. -8- 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. TERRENCE O'DONNELL, P.J. and DIANE KARPINSKI, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .