Perk v. Tomorrows Home Solutions, L.L.C.
2016 Ohio 7784
| Ohio Ct. App. | 2016Background
- Perk contracted for foundation repairs with "Tomorrows Home Solutions dba Ohio Basement Systems" for $9,450 and paid a $3,000 deposit. Balance due was $6,450.
- Perk sued THS in April 2014, alleging defective, unworkmanlike performance and breach of an extended warranty.
- THS answered and filed a counterclaim seeking $6,450 owed under the contract.
- THS moved for summary judgment on its counterclaim; Perk dismissed his claims and did not file any brief opposing the motion.
- The trial court granted summary judgment for THS on the counterclaim for the unpaid balance; Perk appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the entity that brought the counterclaim was a different party because the contract omitted "L.L.C." | Perk: Contract named "Tomorrows Home Solutions, L.L.C. d.b.a. Ohio Basement Systems" in caption but the attached contract omitted "L.L.C.," so THS is not the contracting party. | THS: The contract attached to Perk's own complaint names the same business name used in the counterclaim; omission of the corporate indicator does not change identity or invalidate the contract. | Court: Waived because not raised below; on the merits, no genuine dispute — same entity and omission of "L.L.C." is not dispositive. |
| Whether summary judgment was appropriate on THS's counterclaim | Perk: (implied) disputed debt/defective performance precluded judgment. | THS: Established contract terms, deposit paid, $6,450 balance due; Perk offered no evidence to create a factual dispute. | Court: Summary judgment proper; no evidence from Perk to create a genuine issue of material fact. |
Key Cases Cited
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (summary-judgment standard and construction of evidence)
- Dresher v. Burt, 75 Ohio St.3d 280 (party moving for summary judgment bears initial burden of identifying absence of genuine issue)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (appellate de novo review of summary judgment)
- Foster v. Wells Fargo Fin. Ohio, Inc., 195 Ohio App.3d 497 (issues not raised below are waived on appeal)
- Promotion Co. v. Sweeney, 150 Ohio App.3d 471 (omission of corporate name indicator in subsequent business documents does not negate corporate existence)