Perk v. Tomorrows Home Solutions, L.L.C. , 2016 Ohio 7784 ( 2016 )


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  • [Cite as Perk v. Tomorrows Home Solutions, L.L.C., 
    2016-Ohio-7784
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 104270
    JAMES PERK
    PLAINTIFF-APPELLANT
    vs.
    TOMORROWS HOME SOLUTIONS, L.L.C., D.B.A.
    OHIO BASEMENT SYSTEMS
    DEFENDANT-APPELLEE
    JUDGMENT:
    AFFIRMED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CV-14-825765
    BEFORE: Keough, P.J., E.T. Gallagher, J., and Stewart, J.
    RELEASED AND JOURNALIZED: November 17, 2016
    ATTORNEY FOR APPELLANT
    Daniel S. White
    34 Parmalee Drive
    Hudson, Ohio 44236
    ATTORNEYS FOR APPELLEE
    Scott A. Norcross
    Melanie R. Irvin
    Gallagher Sharp
    Sixth Floor, Bulkley Building
    1501 Euclid Avenue
    Cleveland, Ohio 44115
    KATHLEEN ANN KEOUGH, P.J.:
    {¶1} Plaintiff-appellant, James Perk (“Perk”), appeals from the trial court’s
    judgment granting summary judgment in favor of defendant-appellee, Tomorrows Home
    Solutions L.L.C., d.b.a. Ohio Basement Systems (“THS”), on its counterclaim. Finding
    no merit to the appeal, we affirm.
    I. Background
    {¶2} In April 2014, Perk filed suit against THS. Perk’s complaint alleged that
    he had entered into a contract to pay THS $9,450 for foundation repair services at his
    home, that THS performed its services in a shoddy and unworkmanlike manner, and that
    as a result of THS’s failure to honor its extended warranty, he would be required to incur
    additional expense to repair THS’s defective work. THS answered the complaint, and
    filed a counterclaim against Perk for $6,450 due under the contract.
    {¶3} THS subsequently filed a motion for summary judgment on its
    counterclaim. Perk then dismissed his claims against THS without ever filing a brief in
    opposition to THS’s motion.          The trial court granted THS’s motion for summary
    judgment on its counterclaim against Perk, and this appeal followed.
    II. Law and Analysis
    {¶4} In his single assignment of error, Perk contends that the trial court erred in
    granting THS’s motion for summary judgment.
    {¶5} Civ.R. 56(C) provides that summary judgment is appropriate when (1) there
    is no genuine issue of material fact, (2) the moving party is entitled to judgment as a
    matter of law, and (3) after construing the evidence most favorably for the party against
    whom the motion is made, reasonable minds can reach only a conclusion that is adverse
    to the nonmoving party.       Zivich v. Mentor Soccer Club, Inc., 
    82 Ohio St.3d 367
    ,
    369-370, 
    696 N.E.2d 201
     (1998); Temple v. Wean United, Inc., 
    50 Ohio St.2d 317
    , 327,
    
    364 N.E.2d 267
     (1977). We review the trial court’s judgment de novo, using the same
    standard that the trial court applies under Civ.R. 56(C). Grafton v. Ohio Edison Co., 
    77 Ohio St.3d 102
    , 105,
    
    671 N.E.2d 241
     (1996).
    {¶6} It is well established that the party moving for summary judgment bears the
    burden of demonstrating that no material issues of fact exist for trial. Dresher v. Burt, 
    75 Ohio St.3d 280
    , 292-293, 
    662 N.E.2d 264
     (1996). The moving party bears the initial
    responsibility of informing the trial court of the basis for the motion, and identifying those
    portions of the record that demonstrate the absence of a genuine issue of fact on a
    material element of the nonmoving party’s claim. 
    Id.
     The nonmoving party has a
    reciprocal burden of specificity and must set forth specific facts by the means listed in
    Civ.R. 56(C) showing that there is a genuine issue for trial. 
    Id.
     The reviewing court
    evaluates the record in a light most favorable to the nonmoving party. Saunders v.
    McFaul, 
    71 Ohio App.3d 46
    , 50, 
    593 N.E.2d 24
     (8th Dist. 1990). Any doubts must be
    resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, 
    65 Ohio St.3d 356
    ,
    358-359, 
    604 N.E.2d 138
     (1992).
    {¶7} Perk contends that the trial court erred in granting summary judgment to THS
    on its counterclaim because THS’s counterclaim was brought by an entity that was not a
    party to the litigation. Specifically, Perk contends that he sued “Tomorrows Home
    Solutions, L.L.C., d.b.a. Ohio Basement Systems,” but the contract attached to THS’s
    counterclaim, pursuant to which THS claimed monies owed under the contract, identified
    THS as “Tomorrows Home Solutions d/b/a Ohio Basement Systems,” without any
    reference to the L.L.C. Thus, Perk contends that this entity is not the entity with whom
    he contracted and that he subsequently sued. Perk’s argument is without merit.
    {¶8} First, it is well established that a litigant’s failure to raise an argument in the
    trial court waives the litigant’s right to raise the issue on appeal. Foster v. Wells Fargo
    Fin. Ohio, Inc., 
    195 Ohio App.3d 497
    , 
    2011-Ohio-4632
    , 
    960 N.E.2d 1022
    , ¶ 24. Perk
    did not file a brief in opposition to THS’s summary judgment, and did not raise the issue
    of alleged improper party at any other point in the proceedings. Accordingly, he cannot
    raise the issue here for the first time on appeal.
    {¶9} Moreover, even if not waived, Perk’s argument lacks merit. Paragraph three
    of Perk’s complaint states that on October 12, 2013, he and THS “entered into an
    agreement * * * which is attached hereto and incorporated as Exhibit A.” (Emphasis
    added.) The agreement attached to Perk’s complaint as Exhibit A identifies THS as
    “Tomorrows Home Solutions dba Ohio Basement Systems,” without any reference to an
    L.L.C. designation. This same agreement, which Perk’s complaint acknowledged was
    the agreement between him and THS, was attached to THS’s answer and counterclaim.
    Accordingly, there is no genuine issue of material fact that the THS that brought the
    counterclaim is the same entity with whom Perk contracted and later sued.
    {¶10} Furthermore, we find no legal authority for Perk’s implied proposition that a
    limited liability company must always use the L.L.C. designation on its corporate
    documents in order for a contract with that company to be valid. Indeed, one court
    considering an analogous situation has found that the omission of a corporate name
    indicator in business dealings subsequent to the original articles of incorporation
    submitted to the Ohio Secretary of State is insignificant. In Promotion Co. v. Sweeney,
    
    150 Ohio App.3d 471
    , 
    2002-Ohio-6711
    , 
    782 N.E.2d 117
     (7th Dist.), the Seventh District
    considered whether a company’s failure to place “Inc.” after the company name in a
    contract violated Ohio law such that the president of the company, who signed the
    contract, was personally liable. The court found that corporate name indicators (such as
    “company,” “incorporated,” “corporation,” or the abbreviations for these words) must be
    included with the original corporate papers submitted to the secretary of state, but that
    “the omission of a corporate name indicator in subsequent business dealings does not
    extinguish the existence of a corporation and place personal liability on the representative
    who signs a contract for the company.” Id. at ¶ 20. Accordingly, the fact that THS did
    not use the L.L.C. designation on its contract with Perk is not dispositive of the validity of
    the contract between him and THS.
    {¶11} Finally, we find no genuine issue of material fact to preclude summary
    judgment in favor of THS.        Perk acknowledged that the agreement attached to his
    complaint as Exhibit A was the contract between him and THS, the entity he sued. The
    contract reflects that Perk agreed to pay THS $9,450 for its work; that he paid a $3,000
    deposit; and that a balance of $6,450 was due upon completion. Because Perk did not
    respond to THS’s motion for summary judgment, there is no evidence in the record to
    create a factual dispute regarding THS’s counterclaim for Perk’s failure to pay the
    amount due. Accordingly, the trial court properly granted summary judgment in favor of
    THS on its counterclaim. The assignment of error is therefore overruled.
    {¶12} Judgment affirmed.
    It is ordered that appellee recover from appellant 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 Rule 27 of
    the Rules of Appellate Procedure.
    KATHLEEN ANN KEOUGH, PRESIDING JUDGE
    EILEEN T. GALLAGHER, J., and
    MELODY J. STEWART, J., CONCUR