[Cite as Premier Const. Co., Inc. v. Maple Glen Apts. & Townhomes, Ltd., 2020-Ohio-4779.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

PREMIER CONSTRUCTION CO., INC., 

 

 Appellant, 

 - vs - 

MAPLE GLEN APARTMENTS AND 

TOWNHOUSES LTD., et al., 

 

 Appellees. 

: 

: 

: 

: 

: 

: 

CASE NO. CA2020-03-011 

O P I N I O N 

10/5/2020 

 

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

Case No. 2018 CVE 00481 

Law Office of John H. Forg, John H. Forg, III, 11156 Main Street, Suite D, Sharonville, Ohio 

45241, for appellant 

Patrick L. Gregory, 717 West Plane Street, P.O. Box 378, Bethel, Ohio 45106, for appellees 

 M. POWELL, P.J.

{¶ 1} Premier Construction Co., Inc. appeals the decision of the Clermont County 

Court of Common Pleas, dismissing its claims against Maple Glen Apartments and 

Townhouses, Ltd. For the reasons that follow, this court reverses the trial court's decision 

and remands for further proceedings. 
Clermont CA2020-03-011 

 - 2 - 

{¶ 2} In 2018, Premier filed suit against Maple Glen and its owner and manager, 

Indira Murthy, asserting breach of contract and mechanic's lien foreclosure claims.1 The 

matter proceeded to a bench trial, where the evidence revealed that Premier was engaged 

in the business of supplying materials for residential construction. Maple Glen is a business 

engaged in owning and managing apartments. 

{¶ 3} In January 2017, Murthy came to Premier's offices and met with Premier's 

owner, Jan Gilkey. Murthy presented Gilkey with blueprints for the construction of an 18-

unit apartment building on Maple Glen's property. Murthy apparently wanted Premier to 

provide the materials and labor to construct the building. However, Gilkey informed Murthy 

that Premier did not have sufficient workers to construct a building of that size. Instead, 

Premier agreed to supply building materials for the project, including lumber for framing, 

and trim materials. Premier further agreed to assist Murthy in finding carpenters for the 

project. 

{¶ 4} Based on Murthy's blueprints, and with some modifications suggested by 

Premier, Premier provided Murthy with an initial estimate. Murthy determined that the price 

was too high and did not proceed. Later, Premier provided Murthy with a second estimate. 

This written estimate was presented to Murthy on a Premier form titled "Estimate" which 

appears similar to a standard price quotation form. The form contains four columns, 

"Description," "Qty," "Price/Each" and "Total." 

{¶ 5} The "Description" column listed the building materials that Premier proposed 

to deliver, including framing materials, exterior trim, and interior trim. The "Qty" column was 

left blank. The "Price/Each" column listed the unit prices for the materials that Premier 

 

1. Premier filed suit against "Glen Maple Apartments and Townhouses, Ltd" but referred to the defendant in 

the body of the complaint as "Maple Glen Apartments and Townhouses, Ltd." Throughout these proceedings

the parties and court have variously referred to the defendant as either "Glen Maple" or "Maple Glen." Maple 

Glen points out that its legal name is Maple Glen Apartments and Townhouses, Ltd. 
Clermont CA2020-03-011 

 - 3 - 

proposed to deliver. For example, the framing materials were listed at a price of $107,300. 

Finally, the "Total" column contained identical figures as the "Total/Each" column. The 

grand total for the project was listed at the bottom of the form and was $165,666.08. Murthy 

signed the estimate on behalf of Maple Glen on September 6, 2017. Gilkey also signed the 

estimate. 

{¶ 6} Gilkey testified that after the estimate was signed, the only issue left to resolve 

was when to make delivery to the job site. Gilkey said he and Murthy agreed that Premier 

would deliver the building materials in stages corresponding to the construction of the 

building's floors. Thus, Premier and Maple Glen agreed that the first delivery would contain 

the materials necessary to construct the first floor. 

{¶ 7} Premier delivered the materials for the first floor to Maple Glen's job site in 

early October. On October 16, 2017, Premier issued Maple Glen an invoice for $24,331.20, 

which constituted payment for the first floor materials. The invoice indicated it was due 

upon receipt and that 1.5% interest would accrue per month after 30 days. 

{¶ 8} Thereafter, due to a problem with the installation of foundation steel column 

supports, Murthy decided to postpone construction until the spring of 2018.2 Murthy asked 

Premier to retrieve the delivered materials, store them for her over the winter, guarantee 

their pricing, and redeliver the materials in March 2018. 

{¶ 9} Gilkey told Murthy that what she was proposing would be expensive and 

asked for payment for the delivered materials. However, Maple Glen did not pay. Gilkey 

testified that when it became apparent that Maple Glen did not intend to pay for the 

materials, he rented heavy equipment and transferred the materials from the job site to 

Premier's location. 

 

2. The evidence indicated that without steel columns in place, carpenters could have worked for a few days 

before they would need to stop work and wait for the steel column installation. 
Clermont CA2020-03-011 

 - 4 - 

{¶ 10} Premier issued a second invoice to Maple Glen that listed charges for the 

costs to retrieve the materials from the job site. This included charges for the rental of a 

forklift, two truck trips, and labor. This invoice totaled $3,447.00. 

{¶ 11} Maple Glen did not pay this invoice. In January 2018, Premier issued two 

updated invoices, adding accrued interest. Also, in January 2018, Premier recorded an 

affidavit for mechanic's lien on Maple Glen's real property in the amount of $29,516.70. This 

amount represented the entire unpaid balance on both updated invoices. 

{¶ 12} Gilkey testified that he sought to sell the retrieved building materials. Over 

the course of the next year, he was able to recoup approximately $18,000 by selling the 

materials. Thus, he was seeking approximately $7,000 from Maple Glen in contractual 

damages. 

{¶ 13} After hearing the evidence, the trial court issued a decision dismissing 

Premier's contract claim. The court analyzed the issue as a "sale of goods" under the 

Uniform Commercial Code (UCC) and found that the parties had not validly contracted 

because the written estimate did not list the quantity of goods and therefore violated the 

statute of frauds as set forth in R.C. 1302.04. The court further noted that it found the 

estimate vague as to the goods to be supplied, and lacking a place of delivery, time of 

delivery, and terms of payment. 

{¶ 14} The court also dismissed Premier's claim to foreclose its mechanic's lien. The 

court found that the lien was invalid because it was premised on an invalid contract. The 

court further found that the lien was invalid because the materials furnished by Premier 

were not used to improve Maple Glen's property and had been removed from the job site. 

Premier appeals, raising two assignments of error. 

{¶ 15} Assignment of Error No. 1: 
Clermont CA2020-03-011 

 - 5 - 

{¶ 16} THE TRIAL COURT ERRED IN RULING THAT PREMIER CONSTRUCTION 

AND MAPLE GLEN APARTMENTS DID NOT ENTER INTO A CONTRACT FOR THE

DELIVERY OF MATERIALS FOR THE CONSTRUCTION OF A MULTI-UNIT 

APARTMENT BUILDING AND THAT MAPLE GLEN APARTMENTS BREACHED THAT

CONTRACT BY REFUSING TO PAY FOR THOSE MATERIALS. 

{¶ 17} Premier argues that the trial court erred in finding that it did not have a valid 

contract with Maple Glen because the parties had not agreed to a quantity term. Premier 

argues that because the "Total/Each" and "Total" columns were identical, the estimate 

necessarily called for a single quantity of each good and there was no ambiguity. 

{¶ 18} Appellate review of a decision on the existence of a contract involves a mixed 

question of law and fact. McSweeney v. Jackson, 117 Ohio App.3d 623, 632 (4th 

Dist.1996). The appellate court will accept the factual findings of the trial court if supported 

by some competent, credible evidence. Id. Purely legal issues are reviewed de novo. Ohio 

Dist. Council, Inc. of the Assemblies of God v. Speelman, 12th Dist. Butler Nos. CA2018-

02-025, CA2018-02-031, 2018-Ohio-4388, ¶ 18. 

{¶ 19} The trial court found the underlying agreement to be a transaction for the sale 

of goods, which the parties do not dispute in this appeal. Accordingly, Ohio's version of the 

UCC, found in Revised Code Chapter 1302, applies. 

{¶ 20} Premier's written estimate is similar to what courts have characterized as a 

price quotation. Price quotations may constitute offers to contract and may be deemed an 

offer to form a binding contract "if it is sufficiently detailed, and if it appears from the terms 

of the quotation that all that is needed to ripen the offer into a contract is the recipient's 

assent." SST Bearing Corp. v. MTD Consumers Group, Inc., 1st Dist. Hamilton No. C–

040267, 2004-Ohio-6435, ¶ 15, citing Dyno Construction Co. v. McWane, 198 F.3d 567, 

572 (6th Cir.1999). The determination of whether a price quotation is an offer "is to be 
Clermont CA2020-03-011 

 - 6 - 

made based 'upon the intention of the person communicating the quotation as 

demonstrated by all of the surrounding facts and circumstances.'" H & M Landscaping Co., 

Inc. v. Abraxus Salt, L.L.C., 8th Dist. Cuyahoga No. 94268, 2010-Ohio-4138, ¶ 9, citing 

Dyno Construction at id. 

{¶ 21} Here, there appears to be an intention by both parties that Premier's estimate 

was intended to be an offer to contract. Murthy initially approached Premier with blueprints 

and requested assistance in constructing the building. Premier indicated it could supply 

materials but not labor and the testimony at trial indicated that it took Premier some time to 

prepare the estimate. This process involved Premier recommending some changes to the 

blueprints. Murthy rejected an earlier estimate, because she believed that the price was 

too high. 

{¶ 22} Murthy signed and dated the written estimate. Murthy testified that she signed 

on behalf of Maple Glen. Gilkey also signed the estimate. Premier then had the materials 

delivered, which delivery Maple Glen accepted at its job site. 

{¶ 23} At trial, Murthy indicated that Maple Glen intended to move forward with the 

project as planned until she decided to delay the construction until the spring. Murthy asked 

Premier to remove the materials from the job site, not because she had rejected them, but 

because Maple Glen did not have facilities to store and secure the materials over the winter 

months. Murthy anticipated that Premier would store the materials over the winter and then 

redeliver them to the job site for construction to move forward the following spring. Thus, 

the circumstances in this case indicate that at the time Murthy signed the estimate, Premier 

intended for the estimate to be an offer and Maple Glen intended to be bound to the 

agreement. The next consideration is whether the written estimate was sufficiently detailed 

to be enforceable under the UCC. 
Clermont CA2020-03-011 

 - 7 - 

{¶ 24} "Unlike the common law, the Ohio Uniform Commercial Code does not require 

that all essential terms of a contract be definite in order for the contract to be enforceable." 

Tubelite Co., Inc. v. Original Sign Studio, Inc., 10th Dist. Franklin No. 07AP–601, 2008-

Ohio-1905, ¶ 20, citing 2 Anderson, Uniform Commercial Code, Section 2–204:210, 477 

(3d Ed.1997). With respect to contract formation, the UCC specifies that "[a] contract for 

sale of goods may be made in any manner sufficient to show agreement * * *." R.C. 

1302.07(A). R.C. 1302.04, which codifies the statute of frauds with respect to transactions 

in goods over $500, specifies that a contract is not enforceable "unless there is some writing 

sufficient to indicate that a contract for sale has been made between the parties and signed 

by the party against whom enforcement is sought or by his authorized agent * * *." R.C. 

1302.04(A). "A writing is not insufficient because it omits or incorrectly states a term agreed 

upon but the contract is not enforceable under this division beyond the quantity of goods 

shown in such writing." Id. 

{¶ 25} Additionally, "[e]ven though one or more terms are left open a contract for sale 

does not fail for indefiniteness if the parties have intended to make a contract and there is 

a reasonably certain basis for giving an appropriate remedy." R.C. 1302.07(C). "However, 

in the absence of some basic terms – such as the description and quantity of the goods – 

a contract may not exist." Tubelite at ¶ 20, citing 1 Hawkland, Uniform Commercial Code 

Series, Section 2–204:3 (2001). "Quantity is generally the only term that is required for 

contract formation." Abraxus Salt, 2010-Ohio-4138, ¶ 12, citing Official Comment One to 

R.C. 1302.04 ("The only term which must appear is the quantity term which need not be 

accurately stated but recovery is limited to the amount stated. * * * Only three definite and 

invariable requirements as to the memorandum are made by this subsection. * * * [T]hird, it 

must specify a quantity"). 
Clermont CA2020-03-011 

 - 8 - 

{¶ 26} Citing R.C. 1302.04, the trial court found that the written estimate violated the 

statute of frauds because no quantity for any of the materials was described in the 

document. However, despite the blank "Qty" column, the quantity term can be readily 

discerned because the "Total/Each" and "Total" columns contained identical figures. 

Therefore, the quantity specified was one each for framing materials, interior and exterior 

trim, and stairs allowance. 

{¶ 27} In its brief, Maple Glen cites Abraxus Salt for a case where the court 

concluded that the lack of a quantity term rendered a price quotation unenforceable as a 

contract. That case involved a salt purchaser suing a salt distributor after the distributor 

raised the per-ton price for salt. The purchaser had earlier been provided with a price 

quotation from the distributor for salt at $38 per ton and had prepaid for salt at that rate, 

which salt the purchaser received. Id. at ¶ 2-3. Later, the distributor switched to a more 

expensive supplier, and, as a result, informed the purchaser that salt would now cost $110 

per ton. Id. at ¶ 3. The purchaser sued, claiming that the parties had formed a contract 

based on the price quotation. Id. at ¶ 9. The court rejected this argument, finding that 

because the parties had not agreed on a quantity of tonnage in the earlier price quotation, 

the purchaser could not use the quotation to establish an enforceable contract. Id. at ¶ 20. 

{¶ 28} Abraxus Salt is distinguishable as it involved a purchaser of a bulk commodity 

attempting to use an old price quote, where no quantity had been specified in the quote, to 

secure a favorable rate for a subsequent purchase of the bulk commodity. Here, however, 

the estimate presented to Maple Glen was for a one-time purchase of the specific building 

materials necessary to construct Maple Glen's apartment. Moreover, the quantity term – 

one – was implicit in the estimate. 

{¶ 29} Maple Glen also notes that the trial court found the estimate vague in several 

respects, including a description of the building materials to be supplied by Premier, the 
Clermont CA2020-03-011 

 - 9 - 

place of delivery, the time of delivery, and payment. Again, an agreement under the UCC 

does not necessarily fail because it is indefinite in some respects. R.C. 1302.07(C). To the 

extent the estimate could be described as vague with respect to the quantity and 

specification of building materials, R.C. 1302.05(B) permits it to be "explained or 

supplemented by consistent additional terms". Metal Seal v. Good Time Outdoors, Inc., 

11th Dist. Lake No. 2017-L-142, 2018-Ohio-5326, ¶ 46-47. Here, the parties could refer to 

the blueprints that formed the basis of the estimate to resolve any ambiguity regarding the 

quantity or specification of the building materials that were the subject of the contract. Time 

of delivery was not an issue raised by the parties and was separately agreed upon. Place 

of delivery was also not an issue and Maple Glen's job site was the implicit delivery location. 

Specific terms of payment were not agreed upon but the statutory presumption if not 

otherwise agreed is tender of payment upon delivery. R.C. 1302.55(A). Premier's first 

invoice was consistent with this presumption. This court does not find that the omission of 

these terms rendered the agreement unenforceable. 

{¶ 30} Accordingly, this court concludes that the trial court erred in finding no 

enforceable contract between Premier and Maple Glen because the written estimate failed 

to expressly specify a quantity term. This court sustains Premier's first assignment of error 

and reverses and remands for a determination of whether Maple Glen breached the 

contract, and if so, whether the evidence introduced at trial established Premier's 

damages.3 

{¶ 31} Assignment of Error No. 2: 

 

3. Premier raises two additional issues within this assignment of error, arguing that the trial court erred in 

finding that Maple Glen did not breach its contract with Premier by failing to pay for the delivered materials 

and that the trial court erred in not awarding damages for the materials unsold by Premier and for the costs 

of delivering and removing the delivered materials. However, the trial court found no contract between the 

parties and therefore did not address the issues of breach or damages. 
Clermont CA2020-03-011 

 - 10 - 

{¶ 32} THE TRIAL COURT ERRED IN RULING THAT PREMIER CONSTRUCTION 

WAS NOT ENTITLED TO FORECLOSURE OF ITS MECHANIC'S LIEN ON THE REAL 

PROPERTY OWNED BY MAPLE GLEN APARTMENTS. 

{¶ 33} Premier next argues that the trial court erred in dismissing its claim to 

foreclose a mechanic's lien. Whether Premier demonstrated the validity of its mechanic's 

lien is a legal issue that this court reviews de novo. Speelman, 2018-Ohio-4388, ¶ 18. 

"Mechanics' lien statutes create rights in derogation of the common law and should 

therefore be strictly construed as to the question whether a lien attaches, but their 

procedural and remedial provisions should be liberally construed, after the lien has been 

created." Robert V. Clapp Co. v. Fox, 124 Ohio St. 331 (1931), paragraph one of syllabus, 

reaffirmed by Crock Constr. Co. v. Stanley Miller Constr. Co., 66 Ohio St.3d 588, 592 

(1993). 

{¶ 34} The trial court concluded that Premier did not possess a valid mechanic's lien 

for two reasons. First, the court noted that no valid contract existed between Premier and 

Maple Glen. However, this court has determined that the trial court erred in finding that the 

parties had not contracted. Second, the trial court determined that Premier's lien failed to 

satisfy R.C. 1311.12(A)(1), because the building materials delivered by Premier were not 

used in the course of improvements at Maple Glen's job site and had instead been retrieved 

by Premier. 

{¶ 35} R.C. 1311.12 provides: 

(A) A mechanic's lien for furnishing materials arises under 

sections 1311.01 to 1311.22 of the Revised Code only if the 

materials are: 

(1) Furnished with the intent, as evidenced by the contract of 

sale, the delivery order, delivery to the site by the claimant or at 

the claimant's direction, or by other evidence, that the materials 
Clermont CA2020-03-011 

 - 11 - 

be used in the course of the improvement with which the lien 

arises * * *. 

{¶ 36} This court does not interpret R.C. 1311.12(A)(1) as requiring proof that the 

furnished materials were in fact used in the course of the improvement for which the lien 

arose. By its plain language, the statute provides that a lien arises if the materials are 

furnished with the intent that they be used in the course of the improvement. Thus, it is the 

intent of the mechanic's lien holder, and not the ultimate use that determines when the lien 

arises. This reading is bolstered by considering R.C. 1311.12(A)(2), which expressly 

provides that a lien arises when materials are "[i]ncorporated in the improvement or 

consumed as normal wastage in the course of the improvement * * *." This provision would 

be redundant if R.C. 1311.12(A)(1) also required proof that the materials were actually used 

to improve the real property. Here, the evidence submitted at trial established that Premier 

furnished the building supplies to Maple Glen by delivering the goods to Maple Glen's real 

property, and that, through the aforementioned contract and delivery of goods, evidenced 

its intent that such supplies would be used by Maple Glen in the course of the improvements 

to the property. 

{¶ 37} Consequently, this court finds that the trial court erred in its determination that 

Premier had not established a valid lien based on the alleged lack of a contract and for a 

failure to satisfy R.C. 1311.12(A)(1). Whether the mechanic's lien is otherwise valid and 

enforceable will depend upon the trial court's proceedings on remand. This court sustains 

Premier's second assignment of error. 

{¶ 38} Judgment reversed and the cause remanded for such further proceedings as 

the trial court may deem necessary to determine whether Maple Glen breached its contract 

with Premier, and if so, to assess damages due to the breach. 

 RINGLAND and PIPER, JJ., concur.