Perk v. Tomorrows Home Solutions, L.L.C.
2016 Ohio 7784
| Ohio Ct. App. | 2016Background
- Perk contracted to pay THS $9,450 for foundation repair; he paid a $3,000 deposit and $6,450 remained due on completion.
- Perk sued THS alleging defective, unworkmanlike performance and breach of an extended warranty, seeking damages.
- THS answered and filed a counterclaim seeking $6,450 unpaid under the contract.
- THS moved for summary judgment on its counterclaim; Perk dismissed his claims and did not oppose the motion or file a brief in opposition.
- The trial court granted summary judgment for THS on its counterclaim; Perk appealed, arguing the counterclaim was brought by a nonparty because the contract omitted the "L.L.C." designation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether THS (as counterclaimant) is the same party that contracted with Perk | The contract attached to THS’s counterclaim omitted “L.L.C.,” so the entity suing is not the entity Perk contracted with | The same agreement was attached to Perk’s complaint and acknowledged by Perk as the contract between the parties | The court held THS was the same contracting entity; Perk’s complaint incorporated that identical contract |
| Whether omission of the corporate indicator (L.L.C.) defeats the contract or creates a defense to collection | Omission renders the contracting entity different or invalid for purposes of suit | Omission of a corporate name indicator in the contract does not negate the company’s existence or the contract’s validity | The court held omission of the L.L.C. designation is not dispositive and does not bar THS’s claim |
| Whether summary judgment was appropriate on THS’s counterclaim | Perk implicitly argued procedural/identity defect should preclude judgment | THS established no genuine issue of material fact and entitlement to judgment as a matter of law; Perk submitted no opposing evidence | The court affirmed summary judgment for THS because no dispute remained and Perk failed to oppose the motion |
| Whether Perk may raise the identity/party objection for the first time on appeal | Perk sought to raise the issue on appeal | THS argued Perk waived the issue by failing to raise it in the trial court or oppose summary judgment | The court held the issue was waived because Perk did not raise it below and therefore could not raise it on appeal |
Key Cases Cited
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (summary judgment standard and Civ.R. 56 principles)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (standard for summary judgment review)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (de novo review of summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (movant’s burden and nonmovant’s reciprocal burden on summary judgment)
- Promotion Co. v. Sweeney, 150 Ohio App.3d 471 (omission of corporate name indicator in subsequent business dealings is not dispositive of corporate existence)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (doubts on summary judgment resolved for nonmoving party)