JOHN RUPLE, ET AL. v. MIDWEST EQUIPMENT COMPANY, ET AL.
No. 95726
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 16, 2011
2011-Ohio-2923
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-696983
BEFORE: Sweeney, P.J., Keough, J., and E. Gallagher, J.
ATTORNEYS FOR APPELLANTS
Matthew E. Parkins, Esq.
Singerman, Mills, Desberg & Kauntz
3333 Richmond Road, Suite 370
Beachwood, Ohio 44122
Michael R. Houston, Esq.
Houston Legal Counsel, Inc., L.P.A.
2450 One Cleveland Center
1375 East Ninth Street
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEES
Charles V. Longo, Esq.
Matthew D. Greenwell, Esq.
Charles V. Longo Co., L.P.A.
25550 Chagrin Blvd., Suite 320
Beachwood, Ohio 44122
JAMES J. SWEENEY, P.J.:
{1} Plaintiff-appellants, John Ruple (“Ruple“) and Chagrin Valley Steel Erectors, Inc. (“Chagrin Valley“), appeal from the trial court‘s journal entry that granted defendants-appellees’ Midwest Equipment Company (“Midwest“) and Joseph Manos (“Manos“), motion for summary judgment and that also partially granted the appellees’ motion to strike Ruple‘s affidavit. For the reasons that follow, we affirm.
{3} Appellants’ complaint asserted claims against appellees for breach of contract, promissory estoppel, and intentional or negligent misrepresentation. In the last assignment of error, appellants contend that:
{4} “IV. The trial court erred in striking the supplemental affidavit of John Ruple and failing to consider it as evidence in its determination of the Motion for Summary Judgment of Defendants.”
{5} We review a court‘s denial of a motion to strike for an abuse of discretion. Abernathy v. Abernathy, Cuyahoga App. No. 81675, 2003-Ohio-1528. An abuse of discretion is “more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (internal citations omitted).
{6} Ruple was deposed on April 29, 2010. On June 30, 2010 Ruple submitted an affidavit in support of his brief in opposition to appellees’ motion for summary judgment. Appellees moved to strike Ruple‘s affidavit arguing that it conflicted with his deposition testimony. Specifically, appellees referenced the portion of Ruple‘s deposition where he acknowledged
{7} The trial court did not abuse its discretion in rendering its decision. The Ohio Supreme Court has held “that an affidavit of a party opposing summary judgment that contradicts former deposition testimony of that party may not, without sufficient explanation, create a genuine issue of material fact to defeat a motion for summary judgment.” Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, paragraph three of the syllabus.
{8} Therefore, where Ruple‘s affidavit contradicts his deposition testimony without explanation, the court appropriately struck those portions of Ruple‘s affidavit that contradict his prior testimony without explanation. To the extent Ruple contends that his affidavit contained supplemental testimony, the court did not strike those portions of it.
{9} The fourth assignment of error is overruled.
{10} The first three assignments of error are stated as follows:
{12} “II. The trial court erred in granting summary judgment as to the claims of promissory estoppel of Ruple and CVSE against Midwest and Manos.”
{13} “III. Summary judgment should not have been granted on the intentional misrepresentation claim as the facts which form the basis of this claim do not also form the basis of the breach of contract claim.”
{14} Summary judgment is appropriate where it appears that: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., Inc. (1978), 54 Ohio St. 2d 64, 66, 375 N.E.2d 46;
{15} The burden is on the movant to show that no genuine issue of material fact exists. Id. Conclusory assertions that the nonmovant has no evidence to prove its case are insufficient; the movant must specifically point to evidence contained within the pleadings, depositions, answers to interrogatories, written admissions, affidavits, etc., which affirmatively
{16} An appellate court reviews a trial court‘s grant of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St. 3d 102, 105, 671 N.E.2d 241.
{17} The facts set forth below are construed under the applicable standard.
A. Breach of Contract
{18} To succeed on a breach of contract claim, a party must prove the existence of a contract, that party‘s performance under the contract, the opposing party‘s breach, and resulting damage. See On Line Logistics, Inc. v. Amerisource Corp., Cuyahoga App. No. 82056, 2003-Ohio-5381, at 39. To prove the existence of a contract, a plaintiff must show that both parties consented to the terms of the contract, that there was a “meeting of the minds” of both parties, and that the terms of the contract are definite and certain. Nilavar v. Osborn (2000), 137 Ohio App. 3d 469, 738 N.E.2d 1271, citing McSweeney v. Jackson (1996), 117 Ohio App. 3d 623, 631, 691 N.E.2d 303.
{20} Appellants alleged that they entered an oral contract with appellees whereby Ruple would become an employee of Midwest while a stock purchase agreement was being finalized. Appellants alleged appellees breached an alleged provision of this contract that provided that Ruple would earn salary and benefits equivalent to Manos‘s business partners in Midwest.
{21} Ruple testified that he was never made an employee of Midwest but instead worked for Commercial Crane & Rigging, Inc. (“Commercial Crane“); a company that Manos had acquired at Midwest‘s expense. Ruple did not contribute any capital to the purchase of Commercial Crane. Ruple was employed at Commercial Crane from October of 2005 until October of
{22} During his deposition, Ruple testified that his purchase of Midwest stock was never finalized. However, Ruple said he began winding down the business of Chagrin Valley in 2005 in anticipation of a merger with Midwest. But in his subsequent affidavit, Ruple averred that he could not shut down Chagrin Valley because it was being utilized by Commercial Crane as a subcontractor. He could not provide any amount of damage suffered by Chagrin Valley during this time period but said that he stopped actively pursuing business for Chagrin Valley when he accepted employment with Commercial Crane. The undisputed evidence illustrates that Chagrin Valley‘s business continued to grow during the time Ruple was employed with Commercial Crane.
{23} By letter dated April 19, 2006, Manos informed Ruple that he wished to “table the negotiations” on Ruple‘s purchase of Midwest stock and “removed” all previous preliminary agreements. The correspondence reflected that Ruple could continue as President of Commercial Crane while at the same time continue the operations of his own separate company, Chagrin Valley.
{25} In opposition to appellees’ motion for summary judgment, appellants maintained that there were genuine issues of material fact concerning the fact as to the breach of contract. Specifically, appellants maintained that Ruple had not received vacation pay and that appellants did not receive “compensation for the use of its equipment not listed on the Severance Package list.”
{26} Even construing the evidence in a light most favorable to appellants, it is insufficient to sustain a breach of contract claim on either point. Ruple offers his affidavit testimony in support of his claim that he didnot receive vacation pay or additional monies for the use of equipment.
B. Promissory Estoppel
{27} “[I]n order to state a claim for promissory estoppel, the plaintiff ‘must establish the following elements: 1) a clear and unambiguous promise, 2) reliance on the promise, 3) that the reliance is reasonable and foreseeable, and 4) that he was injured by his reliance.‘” Stern v. Shainker, Cuyahoga App. No. 92301, 2009-Ohio-2731, 9.
{28} The crux of this claim is that appellees promised Ruple he could purchase stock in Midwest. While this may establish the first element of this claim, the evidence is lacking on the remaining elements. Ruple repeatedly acknowledged during his deposition that the parties were in the
{29} Although Ruple maintained he accepted employment with Commercial Crane in reliance on the promise of stock ownership in Midwest; the evidence does not establish that his reliance was reasonable or detrimental. Ruple was compensated by Commercial Crane during his employment and continued to operate Chagrin Valley. Chagrin Valley‘s revenues increased during this time period. In opposition to summary judgment, appellants contend they were damaged because they stopped pursuing lucrative contracts with Chagrin Valley‘s regular customers. Any alleged damages that Ruple asserted in his affidavit were suffered by Chagrin Valley as a consequence of his employment with Commercial Crane are speculative at best and do not create a genuine issue of material fact
C. Intentional Misrepresentation Claim
{30} Appellants’ complaint alleged that “Manos intentionally and/or negligently misrepresented Midwest‘s and Midwest‘s owners’ interest in committing to allow Ruple to purchase an interest in Midwest for $250,000.00.”
{31} Intentional misrepresentation requires proof of the following:
{32} “(a) a representation * * *, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance.” Russ v. TRW, Inc. (1991), 59 Ohio St.3d 42, N.E.2d 49 (citations omitted).
{33} In order to state a claim of negligent misrepresentation, a plaintiff must produce evidence of the following elements:
{34} “One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their
{35} There is no evidence that Manos either negligently or intentionally misrepresented the Midwest owner‘s interest in having Ruple purchase Midwest stock. The evidence reflects that the parties engaged in acts reflecting that intent, including hiring Ruple to operate Commercial Crane, appointing him as director of Midwest, and approving the future sale of stock to Ruple at a price to be determined. The parties negotiated towards effecting this purpose but the terms of the sale were never finalized. After a period of operations, appellees tabled the negotiations but indicated that there was a possibility of discussing the sale at a future date. Appellees wanted Ruple to continue as president of Commercial Crane while he continued to operate his own company Chagrin Valley. Ruple opted to resign his employment with Commercial Crane and focused his efforts on Chagrin Valley. The facts do not create a genuine issue of material fact on this claim
Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
JAMES J. SWEENEY, PRESIDING JUDGE
KATHLEEN A. KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR