Yangtze RR Fasteners Internatl. USA, Inc. v. Ohio Valley Trackwork, Inc.

[Cite as Yangtze RR Fasteners Internatl. USA, Inc. v. Ohio Valley Trackwork, Inc., 2026-Ohio-1518.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       GALLIA COUNTY


Yangtze Railroad Fasteners                        :        Case No. 25CA3
International USA Inc.,                           :
                                                  :
        Plaintiff-Appellant,                      :
                                                  :
        v.                                        :        DECISION AND
                                                  :        JUDGMENT ENTRY
Ohio Valley Trackwork Inc.,                       :
                                                  :
        Defendant-Appellee.                       :        RELEASED 4/21/2026

______________________________________________________________________
                            APPEARANCES:

Robert R. Rittenhouse, Lavelle and Rittenhouse, LLC, Athens, Ohio, for appellant.

Michael L. Barr, Barr Law Office, LLC, Pomeroy, Ohio, for appellee.1
______________________________________________________________________
Hess, J.

        {¶1}     Yangtze Railroad Fasteners International USA Inc. (“Yangtze”) appeals a

judgment of the Gallia County Court of Common Pleas ruling in favor of Ohio Valley

Trackwork Inc. (“OVT”) on Yangtze’s breach of contract and unjust enrichment claims.

Yangtze presents one assignment of error asserting the trial court erred in granting OVT

judgment on the breach of contract claim as this was against the manifest weight of the

evidence presented at trial. For the reasons which follow, we sustain the assignment of

error, reverse the trial court’s judgment as to the breach of contract claim, and remand

for further proceedings consistent with this decision. Yangtze does not challenge the

judgment as to the unjust enrichment claim, so we affirm that part of the judgment.

                             I. FACTS AND PROCEDURAL HISTORY


1 The appellee did not file an appellate brief.
Gallia App. No. 25CA3                                                                                    2


        {¶2}    In November 2022, Yangtze, DBA Yangtze Railroad Materials, filed a

complaint against OVT for breach of contract and unjust enrichment. The matter

proceeded to a bench trial at which evidence was presented that Yangtze is a Maryland

corporation which is registered as a foreign corporation in Ohio and that Patrick Young is

its owner and CEO.2 Young testified that he speaks Mandarin, English is “not really” his

primary language, and he has hearing and vision problems. Young testified Yangtze

supplies railroad materials, has been in business 35 or 36 years, and has done business

with OVT for maybe over 20 years.

        {¶3}    The trial court admitted into evidence a purchase order dated April 20, 2021,

for goods totaling $54,095.40 (“P.O. #7389”). P.O. #7389 identifies the vendor as

“Yangtze Railroad Fasteners” at 500 N. North Point Road in Rosedale, MD, and indicates

the goods are to be shipped to OVT. P.O. #7389 indicates delivery was to be August or

September 2021, and the “[t]erms” were “NET 30,” which “‘is a standard term which

means that payment is due within thirty days from the date of invoice.’” Hilo Prods., Inc.

v. Target Corp., 709 F.Supp.3d 721, 728 (D.Minn), quoting C & M Giant Tire, LLC v. Triple

S Tire Co., 2014 WL 5824789, *3 (E.D.Ky. Nov. 10, 2014). Young testified P.O. #7389

was from OVT and that the goods were delivered.

        {¶4}    The order was evidently fulfilled in two parts, one part involving $12,440.70

in goods, which is not at issue, and one part involving $41,654.70 in goods, which is at

issue. The court admitted an invoice for P.O. #7389 dated September 7, 2021, which



2 This information appears in Yangtze’s responses to interrogatories which were answered by an office

assistant at Yangtze with the assistance of Young and his personal assistant. When Young was asked
about Yangtze’s corporate status at trial, he gave confusing answers. When asked if Yangtze was a
corporation, he testified, “No, we are corporate,” and then “Not incorporate.” Counsel then stated, “You’re
a corporate, okay. You’re not a dba for Patrick, it’s a separate…” and Young said, “No.” Counsel then said
“corporation,” and Young said, “No.”
Gallia App. No. 25CA3                                                                3


states “Yangtze Railroad Materials” and the Maryland address on the top, indicates OVT

is being billed for $41,654.70 in goods, and indicates the due date is October 7, 2021.

The court admitted a copy of a check dated March 1, 2022, from OVT to “Yangtze

Railroad Fasteners” for $1,654.70. The court admitted a second invoice for P.O. #7389

which is identical to the first one except it applies the $1,654.70 payment, making the

balance due $40,000. The court also admitted a bill of lading dated September 7, 2021,

which references P.O. #7389 and “Yangtze Railroad Materials Inc.” at the Maryland

address. Young testified that this document acted as a receipt that OVT received the

goods.   Young testified OVT still owed “over” $40,000, and the balance due was

“approximately $40,000.”

                                      A. Emails

      {¶5}   The court admitted paper copies of emails purportedly exchanged between

Young and Juanita Kaye Miller, OVT’s office administrator. The messages do not appear

to have been sent within a single email chain in which each response is followed by all

the messages which preceded it; most of the messages appear to be part of email chains

containing only a few messages. The emails purportedly by Young all appear to be from

his email address, but Young denied sending some of them. We summarized the emails

below in what we believe to be chronological order. Some emails from Miller to Young

do not include date and time information, so we determined the order in which they were

sent based on where they appear in the email chains, their contents, and Miller’s

testimony about them.

      {¶6}   The emails indicate that on December 13, 2021, Miller asked Young for a

quote, and in response, Young asked Miller to take care of overdue invoices. It appears
Gallia App. No. 25CA3                                                                     4


Young attached several invoices to his email, including one for P.O. #7389, but the

attachments were not introduced into evidence. A few minutes later, Young sent another

email3 stating:

        Please we need to receive the overdue invoice through wire transfer to our
        alternative available bank wire instruction, As our previous account is not
        available till next year [sic].

        Kindly please check and advise us when you can send the payment, in
        further to send wire instruction details [sic].

        {¶7}    On December 21, 2021. Miller stated, “Just wanted to let you know that I

did mail check # 26465 out for $44,806.70.” Young responded:

        We do not receive payment through check for now, as we are having issue
        with our check payment method [sic]. We kindly ask you to cancel the check
        and make the payment through ACH or wire transfer payment to our
        corresponding bank details.

        {¶8}    On December 22, 2021, Miller stated:

        I am in the process of getting my password reset as I do not utilize the ACH
        system. It has been a few years since I have been in the online portal for
        the accounting part. As soon as I have received my reset information and
        am able to get it processed I will let you know.

Young said, “I we wait to hear from you soon thanks [sic][.]” It appears Miller then stated,

“Could you please give me the information for me to send the payment to your bank?” In

an email Young denies sending, he appears to respond:

        Please kindly find below our bank details to receive the total payment.
        Should you have any questions or concerns, please do not hesitate to
        contact me.
        Awaiting payment receipt for our bank reference.

        ...

        BANK NAME: Citizens Bank of Las Cruces
        BENEFICIARY NAME: LUCILLE A TIERNEY DBA YANGTZE RAILROAD
        MATERIALS

3 Young initially denied sending this email but then acknowledged he sent it.
Gallia App. No. 25CA3                                                                                      5


        Routing NO: . . .
        ACCOUNT NO: . . .
        Address 505 S Main St Las Cruces, NM 88004

        {¶9}    Sometime before Christmas weekend, Miller wrote:

        Thank you. I hope to have info later today. If I do hear back from him I will
        let you know[.] We are leaving now for Christmas weekend and will be back
        on Monday[.] Have a great time and Merry Christmas to you and yours.
        Sent from my iPhone[.]

        {¶10} On December 27, 2021, in an email Young denies sending, he appears to

respond4:

        Please as you have stated in your previous message last week to proceed
        with the wire transfer to our below wire instruction details today [sic].

        We kindly ask to receive the bank payment receipt today for the unpaid
        invoice.

This email includes the same bank account information sent on December 22, 2021. It

appears the same day, Miller responded:

        It has been sent to our wire department. I am supposed to receive a phone
        call when they actually have it completed.

        I will let you know as soon as I receive notification.

In an email Young denies sending, he appears to respond: “Awaiting payment receipt,

as soon as you receive the notification.”5




4 When the trial court put the emails in what it believed to be chronological order, it put this December 27,

2021 email before the email in which Miller mentions leaving for Christmas weekend. However, Christmas
weekend would have been before December 27, 2021, and the fact that this December 27, 2021 email
appears at the top of a two email chain containing this email and the Christmas weekend email suggests
that this December 27, 2021 email was a response to the Christmas weekend email. In addition, Miller
testified that this December 27, 2021 email was a reply to the Christmas weekend email.
5 When the trial court put the emails in what it believed to be chronological order, it put this email before

Miller’s email about sending information to the wire department. However, the fact that this email appears
at the top of a two email chain containing this email and the wire department email suggests this email was
a response to the wire department email.
Gallia App. No. 25CA3                                                                   6


      {¶11} On December 28, 2021, in an email Young denies sending, he appears to

tell Miller: “Please we kindly advise you to request for the wire transfer copy from your

bank, as we have check with our bank today and we have not yet receive the payment

sent yesterday [sic].” It appears Miller then responded with an email stating, “Receipt is

attached,” but no attachment was introduced into evidence. Then, in an email Young

denies sending, he appears to thank Miller.

      {¶12} There is no further correspondence until January 13, 2022, when Young

emails Miller stating, “I am just sending you 6 of the OVERDUE invoices one is last Sept

of 2021 2 of the last Oct-2021, could you please take car these matters for me [sic].”

Miller responded:

      I have a question. In late December I received instructions that came from
      you for Wiring the monies. We sent the money and it has left our bank. The
      amount was $44,806.70. Did you not receive? I even have the confirmation
      page.

Young stated:

      We never receive the check for the amount was $44,806.70.

      Why don’t you guys use ACH payment? I send you our ACH payment
      information attached.

No attachment was introduced into evidence. Miller then said:

      I am going to have to see how to get the money back if it did not go to you.
      Making me think it was a scam. Have you had any trouble with being
      hacked maybe? The emails I was receiving from you gave me dollar
      amounts and everything. Have you ever heard of a Lucille Tierney or a
      Steven Maderson?

      {¶13} The next correspondence occurs on January 25, 2022, when Miller asked

Young for a quote. Young told Miller that he could not give her one until full payment was

received. Miller responded, “I can send the other payment to you - $4621.25. I am still
Gallia App. No. 25CA3                                                                    7


trying to figure out how to go about getting the other back[.]” Young responded: “OVT

has overdue total of 67,456.15, especially one is over due start from last Aug-2021 [sic].”

Miller responded:

      Yes…..the large one is the one that I told you about that we thought was
      you and we submitted a wire for – I am contacting my bank to see what I
      can do to try to get our money back. Therefore, we thought that we had
      paid you. I can send you the copy of the transfer that we done thinking it
      was to you if that would help. I am being honest with you.

The last email is from Miller to Young on January 26, 2022, and Miller asked, “Can I

please mail the check for now? As I am dealing with the bank and supposed fraud I would

rather do paper checks until it is resolved please?”

      {¶14} Young did not deny sending Miller any emails which included a signature

block which contained his name, “Yangtze Railroad Materials,” and additional information,

such as Yangtze’s Maryland address, phone and fax numbers, and a statement on

confidential information. As far as Young knew, his emails always include this signature

block. The signature block in the emails Young denied sending included only his name

followed by “Yangtze Railroad Materials.” The record includes one email Young sent two

people at Yangtze in which he forwarded Miller’s email about mailing the $44,806.70

check; this email does not include any signature block for Young.

      {¶15} In email chains which include the emails Young did not deny sending,

messages from Miller to Young include what we will refer to as a “header” setting forth

information regarding the sender, recipient, date and time sent, and subject. In email

chains which include the emails Young denied sending, messages from Miller to Young

do not include a header.
Gallia App. No. 25CA3                                                                                    8


        {¶16} In some of the emails Young denied sending, Miller’s personal email

address, or part of it, was cc’d. Young testified he did not recognize the addresses.

                                B. Additional Testimony of Young

        {¶17} Young testified that OVT usually paid Yangtze by check and never paid on

time. Young was asked what he was trying to accomplish when he sent the December

21, 2021 email requesting payment by ACH or wire transfer. Young testified, “I’m a talk

about a since they, they always late of payments or something [sic]. Okay, also in that

time this is also has a problem with a Post Office delivers [sic].” He further testified,

“Because the reason for that we have some checks that’s missing, okay, which is the

customer pays us [sic]. Okay, but usually when the other, other company even the check

missed it, they replace it right away [sic].” Young testified Yangtze did not receive the

check Miller told him she mailed.

        {¶18} Young testified that the bank account information given to Miller was not for

Yangtze’s bank account. Yangtze only used Wells Fargo Bank.6 Yangtze is in Maryland

and has no business accounts in New Mexico. The names mentioned in one of Miller’s

January 13, 2022 emails, Lucille Tierney and Steven Maderson, meant nothing to him.7

        {¶19} Young testified that he did not know who sent the emails he denied sending.

Young admitted that he is not the only person with access to his email. His assistant has

access to it, and at the time in question, he maybe had two assistants. Later, when asked

how many people had access to his email at the time in question, he testified, “I can’t tell.”



6 Yangtze’s interrogatory responses also indicate that Yangtze has only held bank accounts at Wells Fargo

Bank since January 1, 2020.
7 Yangtze’s counsel purported to read this email before asking if the names in it meant anything to Young,

but in the transcript, the individuals are referred to as “Lucia Tinera” and “Steve Maderson” instead of as
they are referred to in the email. However, it appears Young understood that counsel was asking about
the individuals as named in the email.
Gallia App. No. 25CA3                                                                     9


Young indicated he did not think anyone in his office sent the disputed emails; if they had,

the emails would have included his signature block. The only employee theft he had

knowledge of was theft of products in 2018. When asked what steps he took to secure

his email address, he testified, “We have a, that work people to take care [sic]. Also they

use some security uh, by a Microsoft.” He thought his email was password protected.

Young testified that he investigated this matter by checking with IT people, and he

indicated they did not think Yangtze was at fault. Young testified that aside from OVT,

none of Yangtze’s customers have reported getting a suspicious email from Yangtze. He

indicated he believed OVT was lying about what happened to avoid paying Yangtze.

       {¶20} Young testified that he is aware that hackers can “make it look like an email

is from someone that’s not from you.” Yangtze introduced two articles, which the court

admitted, which discuss the use of visually similar characters to deceive people in online

schemes. One article notes to the human eye, Cyrillic glyphs can be confused with their

Latin counterparts, but computers read them differently.

                                  C. Testimony of Miller

       {¶21} Miller testified that as of 2021, she worked for OVT for about 17 to 18 years,

and OVT had a business relationship with Yangtze that entire time. Prior to the incident

at issue, OVT always paid by check. She could not recall if the $44,806.70 check was

endorsed and cashed or cancelled but testified that it was replaced by the wire transfer.

She did not have authority to initiate wire transfers; it was her job to gather and submit

information regarding wire transfers to her boss. She did not call Young or anyone else

at Yangtze to verify the wire instructions. The email address for Young was the one she

always used to communicate with him, and nothing in the disputed emails led her to
Gallia App. No. 25CA3                                                                                  10


believe she was not communicating with him. She did not find it odd for part of her

personal email address to be cc’d. She has emailed Young from her phone, and she has

her work and personal email on her phone, which is password protected. When asked if

she recalled Young ever sending an email to her personal email before this, she testified,

“Unless he was responding.” Miller indicated her habit was to have one email chain per

order. She thought the first email with the instructions appeared to “be part of the chain”

even though it included only one other email.

        {¶22} Miller acknowledged that in all the time she had dealt with Yangtze Railroad

Materials, she never dealt with anyone named Lucille A. Tierney.8 When asked if she

would agree that Lucille A. Tierney was “not Yangtze Railroad,” she testified, “I have no

clue.”9 She was not aware that Yangtze was a corporation. She acknowledged Yangtze

was “out of Maryland” and that in all the time she dealt with Young, she did not recall

sending anything to New Mexico for payment. Miller acknowledged that on the transaction

detail for the wire transfer, the beneficiary is identified as “LUCILLE A TIERNEY DBA

YANGTZE RAILR OAD MATERIALS,” with a space between the second “R” and “O” in

railroad. When asked if she had any evidence Yangtze received the wire, she testified,

“I just have their word.” Counsel then said, “And their word is that they didn’t receive it?”

Miller said, “That’s all, yes.” Miller did not know why she asked Young about someone

named Steven Maderson. Miller testified that in the time she worked for OVT she has




8 The transcript indicates Miller was asked if she had dealt with “Lucia A. Tinera” and later asked if she

dealt with “Lucille A. Tinera.” However, it appears Miller understood that counsel was asking about Lucille
A. Tierney, the named account beneficiary.
9 Again, the transcript refers to “Lucille A. Tinera,” but again, it appears Miller understand counsel was

asking about Lucille A. Tierney.
Gallia App. No. 25CA3                                                                    11


never been involved in a situation like this one, and OVT’s IT department investigated

and did not find anything.

                                  D. Testimony of Little

       {¶23} Adam Little, one of OVT’s owners since 2004, initiated the wire transfer. He

testified OVT placed an order relevant to that transfer, received the materials, and had

not paid the entire invoice before he initiated the transfer. In all the time he dealt with

Yangtze, its office was in Mayland, and it had never asked for a wire transfer before. To

his knowledge, no one from OVT contacted Young to verify the authenticity of the wire

instructions. The disputed emails looked legitimate to him because they were “from the

exact email address that we always received and sent emails.” He did not think OVT owed

Yangtze any money because OVT “wired the money to the account that we were told to

wire the money to.” He had no reason to believe Yangtze did not control the account and

testified, “Many company’s [sic] have banks all over the country and all over the world.”

       {¶24} When Little learned Young was claiming he did not receive the money, he

checked with OVT’s bank to make sure the money went to a valid account, which it did.

He checked with OVT’s email provider, which said nothing had been compromised on

their side. He also completed a “Complaint Referral Form” on the Internet Crime

Complaint Center, an FBI crime site. In the form, he checked a box to indicate that

spoofed email was used in the incident. His understanding was that a spoofed email is

one “disguised as being from someone but really from someone else.” He picked this

option because it was the “closest one.” He did not hear back from the FBI. Little testified

that during the time he has been at OVT there have been no employee theft incidents or

other email spoofing incidents. When asked what steps OVT took to secure its email, he
Gallia App. No. 25CA3                                                                      12


testified each person has their own computer which is protected by a personal password

and that “they’re always locked. We usually, if we get up away from our computers we

control/alt/delete lock.”

                                       E. Judgment

       {¶25} The trial court issued a judgment entry stating there was no dispute that

Yangtze “supplied OVT with product for which it requested payment,” and “[t]he difficulty

lies in the payment or attempted payment and fraudulent emails and payment link

information.” The court stated that “[e]ach party asserts that the other is responsible for a

‘hack’ which caused OVT to submit payment to a fraudulent source.” The court noted

that there was “no expert witness evidence . . . regarding how the ‘hack’ took place and

which party’s email was susceptible and attacked.” The court also noted that it had found

“very little statutory or case law on this subject,” that the parties “cited a few cases,” and

that the court “found a few others, none of which are exactly on point regarding the legal

issues in this case.” However, the court stated that “[a] review of the case law appears

to place accountability for the loss on the party who was in the best position to discover

the fraudulent prompt for payment.”

       {¶26} After summarizing the evidence, the court reached the following

conclusions. Both parties claimed their IT departments found no inconsistencies or

hacks, and neither party presented expert testimony as to how the hack occurred.

However, despite “discrepancies in the header and signature lines between the emails

Plaintiff says he sent and the ones which appear to be fraudulent, each and every email

came from the exact address which Plaintiff testified is his,” and “Plaintiff admitted that

others in his office had access to his email account.” The court found that “Defendant
Gallia App. No. 25CA3                                                                     13


established that only one person in its office had access to the account under which the

email communications had taken place.” The court found “Plaintiff failed to prove that the

Defendant did not submit payment. Defendant originally sent a check for the outstanding

amount and Plaintiff rejected Defendant’s check. Plaintiff told Defendant to cancel the

check and pay by electronic means. Plaintiff told Defendant that they would send a link

for payment.” The court found that “[t]he link that was provided came from the Plaintiff’s

email address shortly after Plaintiff agreed to send it.” Therefore, the court found in favor

of OVT and against Yangtze.

                              II. ASSIGNMENT OF ERROR

       {¶27} Yangtze presents one assignment of error:

       The trial court erred in granting judgment in favor of the appellant [sic], on
       appellant’s breach of contract claim, as this was against the manifest weight
       of the evidence presented at trial.

                                III. LAW AND ANALYSIS

       {¶28} In its sole assignment of error, Yangtze contends the trial court erred in

granting judgment in favor of OVT on Yangtze’s breach of contract claim as this was

against the manifest weight of the evidence. Yangtze maintains that it proved the

elements of this claim by a preponderance of the evidence. Yangtze claims there is no

dispute OVT ordered railroad materials from Yangtze, which it delivered, and that it never

received payment. Yangtze asserts the trial court mistakenly focused on whether OVT

submitted payment instead of on who it submitted payment to and whether Yangtze

received it. Yangtze claims there is no evidence it received payment. OVT paid Lucille

A. Tierney DBA Yangtze Railroad Materials, whom neither party knows.
Gallia App. No. 25CA3                                                                       14


       {¶29} Yangtze maintains OVT’s defense regarding email spoofing is meritless.

Yangtze asserts that “[r]egardless of how wiring instructions are received, in our modern

world, it is nothing short of negligent for a party to transmit a wire payment without first

verifying the validity of such wiring instructions.” Yangtze claims the negligence in failing

to verify the instructions in this case is “completely fatal” to OVT’s defense. Yangtze also

asserts that there were “so many bright red flags associated with” the “spoof emails” Miller

received “that a reasonable person should have known that [they] were not legitimate”

and that the trial court “brushed off the red flags.” In addition, Yangtze claims that there

is no expert evidence showing the disputed emails were in fact from Young’s email

account, that it is completely speculative that more than one person having access to the

account resulted in the email spoofing, and that the spoofing is more likely the result of

Miller resetting her ACH password just hours before the email spoofing started.

                                   A. Standard of Review

       {¶30} In evaluating whether a judgment is against the weight of the evidence, an

appellate court

       weighs the evidence and all reasonable inferences, considers the credibility
       of the witnesses and determines whether in resolving conflicts in the
       evidence, the finder of fact clearly lost its way and created such a manifest
       miscarriage of justice that the judgment must be reversed.

       Moreover, when reviewing the evidence under this standard, we are aware
       that the weight and credibility of the evidence are to be determined by the
       trier of fact; we thus defer to the trier of fact on these issues because it is in
       the best position to gauge the witnesses’ demeanor, gestures, and voice
       inflections, and to use these observations to weigh their credibility. The trier
       of fact is free [to] believe all, part, or none of any witness’s testimony.

       Ultimately, a reviewing court should find a trial court’s decision is against
       the manifest weight of the evidence only in the exceptional case in which
       the evidence weighs heavily against the decision.
Gallia App. No. 25CA3                                                                     15


(Citations omitted.) Wootten v. Culp, 2017-Ohio-665, ¶ 19-21 (4th Dist.).

      {¶31} App.R. 12(C)(1) states:

      In any civil action or proceeding that was tried to the trial court without the
      intervention of a jury, and when upon appeal a majority of the judges
      hearing the appeal find that the judgment or final order rendered by the trial
      court is against the manifest weight of the evidence and have not found any
      other prejudicial error of the trial court in any of the particulars assigned and
      argued in the appellant’s brief, and have not found that the appellee is
      entitled to judgment or final order as a matter of law, the court of appeals
      shall reverse the judgment or final order of the trial court and either weigh
      the evidence in the record and render the judgment or final order that the
      trial court should have rendered on that evidence or remand the case to the
      trial court for further proceedings.

                        B. Elements of Breach of Contract Claim

      {¶32} “‘“‘A contract is generally defined as a promise, or a set of promises,

actionable upon breach. Essential elements of a contract include an offer, acceptance,

contractual capacity, consideration (the bargained for legal benefit and/or detriment), a

manifestation of mutual assent and legality of object and of consideration.’”’” Adams v.

Morningstar, 2022-Ohio-918, ¶ 25 (4th Dist.), quoting Williams v. Ormsby, 2012-Ohio-

690, ¶ 14, quoting Kostelnik v. Helper, 2002-Ohio-2985, ¶ 16, quoting Perlmuter Printing

Co. v. Strome, Inc., 436 F.Supp. 409, 414 (N.D.Ohio 1976).

      {¶33} “‘A breach of contract is a failure without legal excuse to perform any

promise which forms a whole or part of a contract, including the refusal of a party to

recognize the existence of the contract or the doing of something inconsistent with its

existence.’” United Assn. Local 168, Apprentice Educational Fund v. Robinson, 2025-

Ohio-2421, ¶ 33 (4th Dist.), quoting Bradley v. Pentajay Homes, Div. of C & E Stores,

Inc., 1991 WL 122853, *6 (4th Dist. July 3, 1991), citing Natl. City Bank of Cleveland v.

Erskine & Sons, Inc., 158 Ohio St. 450 (1953), paragraph one of the syllabus. “‘To prove
Gallia App. No. 25CA3                                                                   16


a breach of contract claim, a plaintiff generally must show the existence of a contract,

performance by the plaintiff, a breach by the defendant, and damage or loss to the

plaintiff.’” Krista v. Thompson, 2025-Ohio-5566, ¶ 38 (4th Dist.), citing Alexander Local

School Dist. Bd. of Edn. v. Village of Albany, 2017-Ohio-8704, ¶ 28 (4th Dist.), citing

McCamon-Hunt Ins. Agency, Inc. v. Med. Mut. of Ohio, 2003-Ohio-1221, ¶ 10 (7th Dist.).

The plaintiff must establish these elements by a preponderance of the evidence. SAI

Hospitality, Inc. v. RCVV, Inc., 2025-Ohio-4596, ¶ 26 (7th Dist.).

                                       C. Legal Excuse

       {¶34} The trial court suggested that one who wires money pursuant to fraudulent

wire instructions is legally excused from performance under a contract if the other party

to the contract was in the best position to discover the fraudulent prompt for payment.

We are not aware of any Ohio statute or case law addressing this issue. At the trial level,

OVT directed the court to one Ohio case, but as discussed below, it is inapposite. Thus,

it appears the court’s conclusion was derived from cases from other jurisdictions the

parties directed it to, which we discuss below, and unidentified cases from other

jurisdictions which the court found.

                         1. Hoffman v. Atlas Title Solutions, Ltd.

       {¶35} In the Ohio case OVT cited below, Hoffman v. Atlas Title Solutions, Ltd.,

2023-Ohio-1706 (3d Dist.), a real estate buyer wired the purchase funds to a fraudster

instead of Atlas Title Solutions, Ltd., whom the buyer and sellers engaged as an escrow

and title agent, per email instructions which appeared to be from Atlas. Hoffman at ¶ 3-

5, 7-8. The buyer sued Atlas for negligence, breach of fiduciary duty, and breach of

contract. Id. at ¶ 13. The trial court granted Atlas summary judgment on the breach of
Gallia App. No. 25CA3                                                                    17


fiduciary duty and breach of contract claims and dismissed the negligence claims at the

buyer’s request. Id. at ¶ 25-26. The appellate court reversed, concluding the trial court

erroneously found there was no privity of contract, a triable issue as to the existence of

an implied contract for escrow services existed, and therefore, a triable issue as to the

existence of a fiduciary duty remained and whether Atlas breached it. Id. at ¶ 1-2, 38, 43-

44, 48. The court acknowledged “more percolating issues exist,” the case presented “a

novel issue requiring the analysis of who bears the responsibility for the escrow fraud that

took place in this case,” and triable issues remained as to whether Atlas implemented

proper security measures to prevent the buyer’s “personal information from being

‘phished’ to precipitate the ‘spoofed’ email or whether [the buyer] should have recognized

that the email was ‘spoofed.’” Id. at ¶ 2.

       {¶36} We fail to see what relevance Hoffman has to the present dispute. Hoffman

did not involve a breach of contract action between the buyer and seller and did not

consider or hold that in such an action, accountability for loss resulting from payment

being wired to a fraudster falls on the party who was best positioned to discover the

fraudulent prompt for payment. Rather, Hoffman involved an action between the buyer

and an alleged escrow agent which purportedly had a fiduciary duty to the buyer.

                            2. Cases from Other Jurisdictions

       {¶37} The parties directed the trial court to several cases from other jurisdictions.

In Meritdiam, Inc. v. Facets Fine Jewelry, LLC, 2015 WL12660377 (C.D.Cal. Apr. 27,

2015), a diamond buyer sent payment via wire transfer per email instructions the seller

denied sending, and the seller sued the buyer for breach of contract. Id. at *1-2, 4. In

denying the buyer’s motion for summary judgment, the district court observed that neither
Gallia App. No. 25CA3                                                                       18


party presented it with authority on how California law governs the situation of a third-

party fraud causing a contract payment to be misdirected, and the court failed to find

guidance through its own research. Id. at *6. The court stated absent further direction

from the parties, it believed liability would likely lie with the party the jury determined was

“most greatly at fault in causing the payment to be misdirected.” Id.

       {¶38} In Arrow Truck Sales, Inc. v. Top Quality Truck & Equip., Inc., 2015 WL

4936272 (M.D.Fla. Aug. 18, 2015) (“Arrow”), a truck buyer followed wire instructions

emailed by a fraudster. Id. at *1, 3-4. The buyer sued the seller and its sales associate

for among other things, breach of contract for failure to deliver the trucks, and negligence

for failure to use reasonable security measures to protect their business transactions

conducted over the sales associate’s email account. Id. at *1, 5. Following a bench trial,

the district court concluded the buyer breached by not paying the seller, so the seller had

no obligation to deliver the trucks. Id. at *1, 5. Regarding the negligence claim, the court

concluded neither of the individuals involved in the transaction negligently handled their

email accounts. Id. at *5. The court then considered which party to a contract bears the

loss stemming from fraud by an outsider that results in nonperformance of that contract.

Id. The court found helpful cases in the banking context dealing with third-party imposters

and forged checks. Id. Citing UCC 3-404(d), the court explained that under the imposter

rule, “the party who was in the best position to prevent the forgery by exercising

reasonable care suffers the loss,” and the court concluded based on the facts before it

that the buyer’s assistant manager was in the best position to prevent the fraud, and the

buyer should suffer the loss associated with the fraud. Id. at *3, 5-6.
Gallia App. No. 25CA3                                                                      19


       {¶39} In Bile v. RREMC, LLC, 2016 WL 4487864 (E.D.Va. Aug. 24, 2016), the law

firm representing the defendants wired settlement funds to a fraudster who compromised

the email account of the plaintiff’s attorney. Id. at *1. The parties filed cross-motions to

enforce the settlement agreement. Id. The district court, guided by contract principles

and “the persuasive authority of Article 3 of the U.C.C.,” concluded the defendants

substantially performed their obligations under the settlement agreement and were

entitled to specific performance of the plaintiff’s obligations under it. Id. at *5. The court

found the plaintiff’s attorney/agent failed to use ordinary care under the circumstances

which substantially contributed to the loss. Id. at *11.

       {¶40} In Beau Townsend Ford Lincoln, Inc. v. Don Hinds Ford, Inc., 759

Fed.Appx. 348 (6th Cir. 2018), a hacker purportedly infiltrated the seller’s email account

and sent the buyer fraudulent wiring instructions, which the buyer followed, and the seller

sued the buyer for, among other things, breach of contact. Id. at 349, 352. The district

court granted the seller summary judgment, and the Sixth Circuit reversed. Id. at 349,

352. After considering the contract principle of mutual mistake, Arrow, Bile, and the

doctrine of agency by estoppel, the Sixth Circuit concluded that “[t]o decide this case, the

factfinder must determine which party ‘was in the best position to prevent the fraud,’”

which required a trial. Id. at 359, quoting Arrow at *6.

       {¶41} In J.F. Nut Co. v. San Saba Pecan, LP, 2018 WL 7286493, *3, fn. 4

(W.D.Tex. July 23, 2018), the district court, in denying summary judgment on a breach of

contract claim, found Arrow and Meritdiam persuasive, concluded liability for a

misdirected wired payment would be determined based on an allocation of fault between

the parties, but encouraged the parties to submit additional authority before trial.
Gallia App. No. 25CA3                                                                       20


       {¶42} In Jetcrete N. Am. LP v. Austin Truck & Equip., Ltd., 484 F.Supp.3d 915

(D.Nev. 2020), a truck buyer followed fraudulent wire instructions. Id. at 916-917. The

buyer brought breach of contract and other claims against the seller.             Id. at 918.

Following a bench trial, the district court ruled in favor of the seller. Id. at 921. The court

explained that even under an analysis based on Nevada’s version of the UCC’s imposter

rule, the buyer should suffer the loss because even though the hack of the seller’s email

account created the scenario for loss, the buyer was in the best position to prevent the

loss by taking the reasonable precaution of verifying the wiring instructions by phone. Id.

at 918-920. The failure to do so was “especially disconcerting” after the buyer “received

conflicting email instructions within minutes of each other.” Id. at 920

       {¶43} In Parmer v. United Bank, Inc., 2020 WL 7232025 (W.Va. Dec. 7, 2020),

another case involving a settlement agreement and fraudulent wire transfer instructions,

the lower court applied the imposter rule and concluded the plaintiff must bear the loss

and remit the settlement funds to the defendant, United Bank, Inc. Id. at *3, 6. On appeal,

the Supreme Court of Appeals of West Virgina rejected the suggestion that the defendant

was in the best position to prevent the fraud because the loss could have been averted if

the plaintiff or her counsel exercised reasonable care and verified the wire instructions.

Id. at *6. The instructions were “plainly suspect” as they directed payment to Chase Bank

in Texas for the benefit of an entity uninvolved in the parties’ dealings and unknown to

the defendant. Id. The parties’ dealings dated back to 2014 and involved one prior wire

transfer directly to United in West Virginia, not an uninvolved, outside entity. Id.
Gallia App. No. 25CA3                                                                    21


                                    3. Trial Court’s Rule

       {¶44} It is not a foregone conclusion that we should, as the trial court evidently

did, adopt a rule placing accountability for loss in a case such as this on the party in the

best position to discover the fraudulent prompt for payment based on the above cases.

However, it is unnecessary for us to evaluate the correctness of that rule today because

Yangtze does not challenge it on appeal. Yangtze’s assignment of error focuses on the

weight of the evidence, not the validity of the rule the trial court adopted.

                                        D. Analysis

       {¶45} The trial court’s judgment on the breach of contract claim was against the

manifest weight of the evidence. Yangtze presented uncontradicted evidence of the

existence of a contract. The trial court admitted into evidence P.O. #7389 from OVT to

Yangtze (identified as “Yangtze Railroad Fasteners”) for the purchase of $54,095.40 in

goods. “Generally, the submission of a purchase order is viewed as being an offer, which

may then be accepted or rejected by the offeree.” Spoerke v. Abruzzo, 2014-Ohio-1362,

¶ 30 (11th Dist.), citing Am. Bronze Corp. v. Streamway Prods., 8 Ohio App.3d 223 (8th

Dist.1982), paragraph one of the syllabus. There is evidence Yangtze accepted this offer

as it delivered the goods to OVT and billed it in accordance with P.O. #7389. There was

consideration—OVT was to pay Yangtze $54,095.40 for the goods. There was no dispute

concerning contractual capacity, and one can infer that it and manifestation of mutual

assent existed from the evidence. Moreover, there is no dispute concerning the legality

of object and of consideration, i.e., the exchange of railroad materials for money. There
Gallia App. No. 25CA3                                                                                  22


is also no dispute that Yangtze performed by providing the ordered goods to OVT, which

accepted them.10

        {¶46} Yangtze also presented evidence that OVT failed to fully perform under the

contract and that Yangtze sustained damages. There was evidence that OVT paid Lucille

A. Tierney, purportedly DBA as Yangtze Railroad Materials, for some of the materials

instead of Yangtze and that Yangtze is still owed $40,000 under the contract.11 We

observe that Yangtze’s contention that it is undisputed that it never received payment is

not accurate. In its post-trial brief, OVT suggested the trial court should find Young was

lying about Yangtze not owning or controlling the bank account at issue and that Yangtze

received the payment. The trial court made no explicit finding regarding whether Yangtze

received the payment, and Yangtze suggests that the court instead incorrectly focused

on whether Yangtze proved that OVT did not submit payment. However, while the court’s

decision could have been clearer, it appears the court made the finding that Yangtze

failed to prove OVT did not submit payment in response to Young’s testimony indicating

he believed OVT was lying about the disputed emails and wire transfer to avoid paying

Yangtze. And it appears that the court believed the disputed emails were fraudulent and

that Yangtze did not receive the money but concluded OVT’s performance was legally




10 We note that under R.C. 1302.04(A), a contract for the sale of goods of $500 or more is generally 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
or broker.” There is no such writing here, but under R.C. 1302.04(C)(3), a contract which does not satisfy
the requirements of R.C. 1302.04(A) but which is valid in other respects is enforceable “with respect to
goods for which payment has been made and accepted or which have been received and accepted in
accordance with section 1302.64 of the Revised Code.”
11 Although the check Miller purportedly sent, which Young testified Yangtze did not receive, was for

$44,806.70, Yangtze did not present evidence to support a breach of contract claim regarding the other
$4,806.70 or request damages for that additional amount in its post-trial brief.
Gallia App. No. 25CA3                                                                   23


excused because Yangtze was in the best position to discover the fraudulent prompt for

payment and was therefore accountable for the loss.

       {¶47} The implicit conclusion that Yangtze was in the best position to discover the

fraudulent prompt for payment was against the manifest weight of the evidence. It

appears the court reached this conclusion because it determined the fraud was

perpetrated through Young’s email account, and Yangtze was lax in its email security

because multiple people had access to Young’s email account. It also appears the court

reached this conclusion because it determined that despite the presence of some

discrepancies in the emails, OVT had no reason to question their authenticity because

they came from Young’s email address, Yangtze rejected payment by check and

requested electronic payment, and according to the court, Yangtze told OVT it would send

a “link for payment,” and the link “came from the Plaintiff’s email address shortly after

Plaintiff agreed to send it.”

       {¶48} There is some evidence that the fraud was perpetrated through Young’s

email account—the paper copies of the emails show that all of messages purporting to

be from Young came from his email account.        Although Yangtze presented evidence

about the use of visually similar characters to deceive people, there is no evidence that

occurred here. However, there is also no evidence as to who the fraudster was or how

they accessed Young’s account and no evidence that the fact that Young allowed multiple

people to access his account contributed to the fraud.

       {¶49} But even if lax security regarding Young’s email account created the

scenario for loss, OVT was still in the best position to discover the fraudulent prompt for

payment by taking reasonable precautions to verify the bank account information before
Gallia App. No. 25CA3                                                                 24


transferring the money. It may have been reasonable for OVT to not detect certain

discrepancies in the emails. But there were obvious red flags OVT and the trial court

overlooked.

      {¶50} During the week of December 19, 2021, after Miller told Young she mailed

a check, he asked her to cancel it and pay by ACH or wire transfer, and Miller responded:

      I am in the process of getting my password reset as I do not utilize the ACH
      system. It has been a few years since I have been in the online portal for
      the accounting part. As soon as I have received my reset information and
      am able to get it processed I will let you know.

The trial court found that Miller was informing Young “that she was making arrangements

to use the ACH system.” Young responded, “I we wait to hear from you soon thanks

[sic][.]” Although additional emails were exchanged that week about bank account

information, Miller never stated that OVT would pay by wire transfer instead of ACH. But

the following week, when the bank account information was resent, the disputed email

containing it stated, “Please as you have stated in your previous message last week to

proceed with the wire transfer to our below wire instruction details today [sic].” And

contrary to what the trial court found, the disputed emails did not include a “link for

payment”; they included suspicious bank account information. The bank location was

New Mexico, and Yangtze is in Maryland, a fact which Miller and Little knew. And more

importantly, the account beneficiary was identified as Lucille A. Tierney DBA Yangtze

Railroad Materials. Miller acknowledged that in the 17 to 18 years she had done business

with Yangtze, she never dealt with someone named Lucille A. Tierney. OVT should have,

at a minimum, called Yangtze to verify the authenticity of the account information before

wiring the money to an account benefitting an unknown individual. If OVT had done so,

it would have discovered the prompt for payment was fraudulent and avoided the loss.
Gallia App. No. 25CA3                                                                   25


       {¶51} After reviewing the entire record, weighing the evidence and all reasonable

inferences, and considering the credibility of the witnesses, we find that in resolving

conflicts in the evidence, the trial court clearly lost its way and created such a manifest

miscarriage of justice that the judgment on the breach of contract claim must be reversed.

Accordingly, we conclude the trial court’s judgment on the breach of contract claim was

against the manifest weight of the evidence, sustain the sole assignment of error, reverse

the trial court’s judgment as to the breach of contract claim, and remand for further

proceedings consistent with this decision. Because Yangtze does not challenge the

judgment as to the unjust enrichment claim, we affirm that part of the judgment.

                                                       JUDGMENT AFFIRMED IN PART
                                                           AND REVERSED IN PART.
                                                               CAUSE REMANDED.
Gallia App. No. 25CA3                                                                26


                                 JUDGMENT ENTRY

     It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Appellee shall pay the costs.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Gallia
County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Smith, P.J. & Wilkin, J.: Concur in Judgement and Opinion.


                                        For the Court


                                        BY: ________________________
                                            Michael D. Hess, Judge




                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 22, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.