Filo v. Liberato

987 N.E.2d 707 (2013)

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Nature of the Case

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Facts

P was a subcontractor on a commercial construction project owned by D. P provided materials and services under contract to D & R Construction and Maintenance, the general contractor.

At some point during August of 2006, P was owed $33,600.00. P was not receiving payment from D & R Construction and approached D directly about the amount due. It is alleged that D promised him full payment. P later received $7,000.00, but never received the balance. On March 31, 2010, P filed a complaint alleging promissory estoppel, unjust enrichment, conversion, and fraud. D moved to dismiss under Civ.R. 12(B)(6) in that the suit was barred by the statute of frauds, which requires that any contract primarily for the provision of goods exceeding $500.00 in value, in addition to services, be made in writing. The statute also requires that a promise to pay the debt of another must be in writing. According to P. D is not protected by the statute of frauds because not only has he retained the benefit of P's work, the underlying purpose for his verbal promise that the subcontractor would be paid was to preserve D's own pecuniary interest in the completion of the construction project. The trial court dismissed the complaint. P appealed.