NUFLOOR SYSTEMS, DIVISION OF TECHNICAL CONSTRUCTION SPECIALTIES, INC., Appellant/Cross-Appellee v. PRECISION ENVIRONMENTAL CO., Appellee/Cross-Appellant
C.A. No. 25432
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
July 27, 2011
[Cite as NuFloor Sys. v. Precision Environmental Co., 2011-Ohio-3669.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2008-10-7552
Dated: July 27, 2011
MOORE, Judge.
{¶1} Appellant, NuFloor Systems, Division of Technical Construction Specialties, Inc., appeals from the judgment of the Summit County Court of Common Pleas, which granted summary judgment to appellee, Precision Environmental Co., on each of NuFloor‘s claims. We reverse in part, affirm in part, and remand the matter to the trial court.
I.
{¶2} This litigation arose out of the construction of the Akron Summit-County Public Library. The following facts provide a background for the current dispute. In the construction of the library, The Ruhlin Company served as the general contractor. Corporate Floors, Inc. served as the prime flooring contractor. Corporate Floors engaged NuFloor as a subcontractor to install the floor underlayment. NuFloor was required by contract to pour and install a product called Super-Flo Top, which turned out to be defective and had to be removed and replaced with a
{¶3} Precision sought payment from Corporate Floors and NuFloor. On December 3, 2004, Corporate Floors filed an interpleader action in the Cuyahoga County Court of Common Pleas seeking a determination as to whom it was liable for payment. In that action, NuFloor filed a counterclaim against Corporate Floors. Neither Corporate Floors nor NuFloor had a written contract with Precision. Corporate Floors and NuFloor filed a joint motion to arbitrate only the counterclaim pursuant to their contract. After arbitration, on October 18, 2006, Corporate Floors and NuFloor filed a consent judgment entry in which the interpleader funds were released to Precision, Corporate Floors agreed not to contest confirmation of the arbitration award, and the parties agreed that “[n]othing in this Order shall be construed to bar or abridge any claim by NuFloor against Precision” related to the library project.
{¶4} Approximately two years later, on October 29, 2008, NuFloor sued Precision in the Summit County Court of Common Pleas and asserted claims for unjust enrichment, equitable contribution, and equitable indemnification. Precision moved for summary judgment on several grounds and, on May 4, 2010, the trial court granted summary judgment in its favor on all of NuFloor‘s causes of action.
{¶5} NuFloor timely filed a notice of appeal. NuFloor raises three assignments of error for our review. Precision timely filed a notice of cross-appeal. Precision raises a cross-assignment of error.
NUFLOOR‘S ASSIGNMENT OF ERROR I
“SUMMARY JUDGMENT WAS INAPPROPRIATE FOR ANY CLAIM IN THIS CASE, BECAUSE PRECISION DID NOT SUPPORT ITS MOTION WITH ANY EVIDENCE THAT
CIV.R. 56(C) PERMITTED THE TRIAL COURT TO CONSIDER.”
{¶6} In its first assignment of error, NuFloor contends that the trial court should not have entered summary judgment in favor of Precision on any claim because Precision failed to support its motion with any evidence permitted by
{¶7} Precision filed a motion for summary judgment to which it attached a copy of the complaint in this action, as well as the complaint from an interpleader action filed in the Cuyahoga County Court of Common Pleas by Corporate Floors against NuFloor and Precision. The interpleader complaint included five attached exhibits: the contract between Corporate Floors and NuFloor, an invoice from Precision to NuFloor, a notice of claim on Corporate Floors’ project bond, a list of contractors involved in the library project, and pages five through sixteen of an unidentified pleading containing NuFloor‘s counterclaim against Corporate Floors. Also attached were Corporate Floors’ and NuFloor‘s “joint motion to stay proceedings pending arbitration of NuFloor‘s counterclaim” in the interpleader action, the consent judgment entry between Corporate Floors and NuFloor in the interpleader action, a copy of the arbitration award between Corporate Floors and NuFloor, an email containing the minutes of a meeting between various contractors regarding the flooring materials, correspondence from various contractors
{¶8}
{¶9} In Costoff, the defendant attached copies of the trial court‘s judgment entries from a prior action between the same parties to his motion for summary judgment. Id. at ¶4. The plaintiff argued that the uncertified copies did not constitute the type of evidence identified in
{¶10} We also recognize that this Court has repeatedly stated a preference for avoiding summary judgment by ambush, see, e.g., Smith v. Ray Esser & Sons, Inc., 9th Dist. No. 10CA009798, 2011-Ohio-1529, at ¶15. The attachments to the reply brief did not cause Precision to ambush NuFloor. The documents attached to the reply were merely certified copies of many of the documents that had been attached to the original motion for summary judgment. See JRC Holdings, Inc. v. Samsel Servs. Co., 166 Ohio App.3d 328, 2006-Ohio-2148, at ¶25-26 (holding that copies of reports attached to a summary judgment motion could be authenticated when later attached to and authenticated by an affidavit, which was itself attached to the reply brief in support of summary judgment). In this case, we have considered only those documents that were properly certified and attached to the reply brief in support of summary judgment or otherwise appropriate for consideration under
{¶11} Ultimately, because Precision did provide some evidence that the trial court could properly consider, we cannot agree with NuFloor‘s position that there existed no
{¶12} NuFloor‘s first assignment of error is overruled.
NUFLOOR‘S ASSIGNMENT OF ERROR II
“THE TRIAL COURT IMPROPERLY GRANTED SUMMARY JUDGMENT TO PRECISION ON NUFLOOR‘S CLAIM FOR INDEMNIFICATION.”
{¶13} In its second assignment of error, NuFloor contends that the trial court improperly granted summary judgment to Precision on NuFloor‘s claim for indemnification. We agree.
{¶15} Pursuant to
{¶16} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93. Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in
{¶17} In granting summary judgment in favor of Precision, the trial court relied upon the premise that “[t]here is no special relationship between NuFloor and Precision. NuFloor previously successfully argued that [Corporate Floors] was contractually responsible for paying
{¶18} Initially, we observe that Precision‘s argument in its summary judgment motion directed to the equitable indemnification claim does not contain any citations to the record. Precision also asserted that a relationship was necessary between the parties in order for NuFloor to recover on the theory of equitable indemnification. Precision then attempted to demonstrate the lack of a relationship between itself and NuFloor. As noted above, in order to meet its Dresher burden a party must point “to parts of the record that show the absence of a genuine issue of material fact.” Dresher, 75 Ohio St.3d at 292-93. The introduction portion of Precision‘s motion for summary judgment included citations; however, even a thorough review of those citations reveals that Precision has failed to demonstrate the absence of a genuine issue of material fact. Precision relied on the unauthenticated change orders that were attached only to the motion for summary judgment, as well as the arbitration award, which was attached to the motion for summary judgment and the reply. Neither copy of the arbitration award was certified or authenticated, even after NuFloor objected to the lack of authentication. Accordingly, the arbitration award should not have been considered by the trial court. Precision did, however, include a copy of its invoice to NuFloor seeking payment for its work on the project. The invoice was attached as an exhibit to Corporate Floors’ previously resolved complaint for interpleader filed in the Cuyahoga County Court of Common Pleas. Precision attached an uncertified copy of this complaint and its exhibits to the motion for summary judgment and a certified copy of this complaint and its exhibits to its reply in support of summary judgment. Contrary to Precision‘s position, this evidence suggested a relationship between NuFloor and
{¶19} Precision‘s argument in support of summary judgment attempted to establish that no relationship existed between itself and NuFloor and, therefore, that equitable indemnification is inappropriate. However, Precision primarily cited to documents that the trial court should not have considered because they failed to comply with
{¶20} Accordingly, NuFloor‘s second assignment of error is sustained.
NUFLOOR‘S ASSIGNMENT OF ERROR III
“THE TRIAL COURT IMPROPERLY GRANTED SUMMARY JUDGMENT TO PRECISION ON NUFLOOR‘S CLAIM FOR UNJUST ENRICHMENT.”
{¶21} In its third assignment of error, NuFloor contends that the trial court improperly granted summary judgment to Precision on the claim for unjust enrichment. We agree.
{¶22} Unjust enrichment consists of three elements: “(1) a benefit conferred by the plaintiff upon the defendant, (2) knowledge by the defendant of the benefit, and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment.” Natl./RS, Inc. v. Huff, 10th Dist. No. 10AP-306, 2010-Ohio-6530, at ¶28, citing Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183.
{¶24} Accordingly, NuFloor‘s third assignment of error is sustained.
PRECISION‘S CROSS-ASSIGNMENT OF ERROR
“THE TRIAL COURT SHOULD HAVE GRANTED [PRECISION‘S] MOTION FOR SUMMARY JUDGMENT ON COLLATERAL ESTOPPEL PRINCIP[LE]S.”
{¶25} In its cross-assignment of error, Precision contends that the trial court should have granted its motion for summary judgment on the basis of collateral estoppel. We do not agree.
{¶26} “The modern view of res judicata embraces the doctrine of collateral estoppel, which basically states that if an issue of fact or law actually is litigated and determined by a valid and final judgment, such determination being essential to that judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” (Italics sic). Hicks v. De La Cruz (1977), 52 Ohio St.2d 71, 74. More succinctly, collateral estoppel in subsequent litigation requires identical parties and issues to those involved in the original litigation. Goodson v. McDonough Power Equipment, Inc. (1983), 2 Ohio St.3d 193, 200.
{¶27} The trial court ruled that it was unable “to conclude that the identical issues were necessarily determined between these parties.” This assignment of error, too, is predicated upon inadmissible materials Precision submitted in support of its summary judgment motion. In its motion for summary judgment on this issue, Precision relied exclusively upon the unauthenticated change orders and arbitration award in an effort to establish that the Cuyahoga County interpleader action involved the same parties and issues as this case. Precision specifically contended that a “review of the arbitration award reveals the issues involving these
{¶28} Accordingly, Precision‘s cross-assignment of error is overruled.
III.
{¶29} NuFloor‘s first assignment of error is overruled. Its second and third assignments of error are sustained. Precision‘s cross-assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is reversed in part, affirmed in part, and the cause remanded for further proceedings consistent with this opinion.
Judgment reversed in part, affirmed in part, and cause remanded.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellee/Cross-Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, J. CONCURS
BELFANCE, P. J. CONCURS IN JUDGMENT ONLY, SAYING:
{¶30} I concur in the judgment of the majority. In reviewing the trial court‘s ruling on the motion for summary judgment, the majority considers several documents which are either certified copies, or are attached to a certified copy of a document, despite the fact that those documents are not accompanied by a supporting affidavit as expressly required by
APPEARANCES:
DANIEL M. WALPOLE , Attorney at Law, for Appellant/Cross-Appellee.
RONALD D. GREGORY, Attorney at Law, for Appellee/Cross-Appellant.