Perk v. Tomorrows Home Solutions, L.L.C.
2016 Ohio 7784
| Ohio Ct. App. | 2016Background
- Perk contracted with Tomorrows Home Solutions (doing business as Ohio Basement Systems) for foundation repairs for $9,450; he paid a $3,000 deposit and a $6,450 balance remained due.
- Perk sued THS in April 2014, alleging defective, unworkmanlike work and breach of an extended warranty, seeking damages for anticipated repair costs.
- THS answered and asserted a counterclaim seeking $6,450 unpaid under the contract.
- THS moved for summary judgment on its counterclaim; Perk dismissed his complaint without filing any opposition brief to the motion.
- The trial court granted summary judgment in favor of THS on its counterclaim for the unpaid balance; Perk appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether THS was a proper party to assert the counterclaim | Perk: contract named "Tomorrows Home Solutions, L.L.C., d.b.a. Ohio Basement Systems" but the attached contract omitted "L.L.C.," so THS as named in the counterclaim is a different entity | THS: The contract attached to Perk’s own complaint names the same business (without "L.L.C."); omission of the corporate indicator in the contract does not defeat the agreement or party identity | Court: Perk waived the issue by not raising it below; alternatively, omission of "L.L.C." is not dispositive and the entities are the same, so THS properly recovered the unpaid balance |
| Whether summary judgment on the counterclaim was appropriate | Perk: (implied) factual dispute over party identity and possibly performance/quality issues | THS: No genuine factual dispute; contract shows $6,450 due and Perk offered no evidence to rebut | Court: Summary judgment was proper because no evidence opposed THS’s showing that $6,450 remained due |
Key Cases Cited
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201 (Ohio 1998) (summary judgment standard explained)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317, 364 N.E.2d 267 (Ohio 1977) (summary judgment standard and trial court duties)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 671 N.E.2d 241 (Ohio 1996) (appellate review of summary judgment is de novo)
- Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (Ohio 1996) (moving party’s burden in summary judgment and nonmoving party’s reciprocal burden)
- Foster v. Wells Fargo Fin. Ohio, Inc., 195 Ohio App.3d 497, 960 N.E.2d 1022 (Ohio App. 2011) (failure to raise an argument in the trial court waives it on appeal)
- Promotion Co. v. Sweeney, 150 Ohio App.3d 471, 782 N.E.2d 117 (Ohio App. 2002) (omission of corporate name indicator in later business documents does not extinguish corporate existence)
- Saunders v. McFaul, 71 Ohio App.3d 46, 593 N.E.2d 24 (Ohio App. 1990) (evaluation of summary judgment evidence in favor of nonmoving party)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 604 N.E.2d 138 (Ohio 1992) (doubts on summary judgment must be resolved for nonmoving party)