Dana Partners, L.L.C. v. Koivisto Constructors & Erectors, Inc.
2012 Ohio 6294
Ohio Ct. App.2012Background
- Dana Partners contracted Koivisto’s company to perform two functions on a roof project: construction-site management and plan protection, with a not-to-exceed price of $88,000 for protection.
- Invoices for Koivisto’s and Connell’s work were paid monthly without challenge, with Koivisto providing cost and expense categories in the bills.
- Dana Partners later disputed Connell’s charges; Thompson requested information supporting Koivisto’s prior charges but Koivisto did not reply.
- Koivisto created an Arizona corporation with the same name after the project; Dana Partners sought relief against Koivisto personally and against both Koivisto entities.
- Trial court found Dana Partners proved breach of contract and that Koivisto’s Ohio company overcharged by $137,115.83, but did not find fraud or piercing of the corporate veil; it held Arizona liable for the debt.
- On appeal, the court modified the judgment to recover $137,115.83 from Koivisto’s Ohio corporation only; Koivisto’s Arizona entity was not liable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a meeting of the minds on actual costs plus markup | Dana Partners argues for actual costs plus markup, not RSMeans. | Koivisto asserts prior course of dealing using RSMeans governs. | Yes, meeting of minds supported; usage of trade favored Dana Partners. |
| Whether the trial court properly set markups for each charge | Dana Partners relies on industry usage for markups. | Koivisto argues no mutual agreement on markup amounts. | Court's markup findings upheld; supported by credible testimony. |
| Whether Koivisto Arizona is liable as successor to Koivisto Ohio | Dana Partners seeks Arizona liability under de facto merger/continuation theories. | Koivisto contends no de facto merger or continuation; assets not transferred. | Arizona liable only as mere continuation; majority so held, but Arizona ultimately not liable on final judgment. |
| Whether piercing the corporate veil was warranted for Koivisto personally | Dana Partners claims fraud and improper invoicing justify veil piercing. | Koivisto contends no fraud; RSMeans acceptable; no veil piercing. | Veil piercing not warranted; no manifest fraud; court preserved corporate form. |
Key Cases Cited
- Dombroski v. Wellpoint, Inc., 119 Ohio St.3d 506 (2008-Ohio-4827) (establishes Belvedere veil-piercing standard and limits to fraud/illegal acts)
- Belvedere Condo. Unit Owners’ Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274 (1993-Ohio-) (veil piercing requires fraud or similar illegality; strict limits)
- Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344 (1993-Ohio-) (successor liability exceptions to Welco are four; mere continuation possible with asset transfer)
- Ameritech Publishing, Inc. v. Mayfield, 2011-Ohio-2971 (7th Dist. 2011) (uses contract formation elements and meeting of the minds standard)
- Marisay v. Perrysburg Machine & Tool, Inc., 37 Ohio App.3d 35 (6th Dist. 1987) (usage of trade evidence to interpret contracts)