Advance Paroll Funding, Ltd. v. Maurer Elec., L.L.C.
This text of 2011 Ohio 1323 (Advance Paroll Funding, Ltd. v. Maurer Elec., L.L.C.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[Cite as Advance Paroll Funding, Ltd. v. Maurer Elec., L.L.C., 2011-Ohio-1323.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: ADVANCE PAYROLL FUNDING, : William B. Hoffman, P.J. LTD. : Julie A. Edwards, J. : Patricia A. Delaney, J. Plaintiff-Appellant : : Case No. 10CA83 -vs- : : : OPINION MAURER ELECTRIC, LLC, et al.,
Defendant-Appellee
CHARACTER OF PROCEEDING: Civil Appeal from Richland County Court of Common Pleas Case No. 07CVF1315H
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 18, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
KENNETH BAKER ROBERT ROBY Javitch, Block & Rathbone LLP 8000 Ravine’s Edge Court, Suite 103 1100 Superior Avenue, 19th Floor Columbus, Ohio 43235 Cleveland, Ohio 44114 [Cite as Advance Paroll Funding, Ltd. v. Maurer Elec., L.L.C., 2011-Ohio-1323.]
Edwards, J.
{¶1} Appellant, Advance Payroll Funding, Ltd., appeals a judgment of the
Richland County Common Pleas Court dismissing its complaint against appellee Darrell
Maurer.
STATEMENT OF FACTS AND CASE
{¶2} Appellant filed the instant action on September 14, 2007, alleging that
defendant Maurer Electric, LLC (“Maurer Electric”) failed to pay for services rendered to
it by Technical Skilled Trade Services, a company which provides temporary staffing to
businesses. Appellant had entered into an agreement with Technical Skilled Trade
Services whereby all of Technical Skilled’s accounts receivable had been assigned to
appellant.
{¶3} Maurer Electric filed an answer denying liability and a counterclaim for
tortious interference with business relations.
{¶4} Appellee Darrell Maurer, president of Maurer Electric, filed a separate
action against appellant for defamation (Case No. 2007CV1700). Appellant filed an
answer denying the defamation allegations, and a counterclaim asserting the identical
claims set forth in its action against Maurer Electric under a “piercing the corporate veil”
theory. Upon motion by appellant, the trial court consolidated the two actions into one,
Case No. 2007CV1315.
{¶5} Subsequent to the consolidation, appellee dismissed the defamation
action against appellant.
{¶6} On January 10, 2009, appellant moved for summary judgment on its
claims against Maurer Electric and its claims against appellee, as well as on Maurer Richland County App. Case No. 10CA83 3
Electric’s claim for tortious interference with a business relationship. Appellee filed a
reply to the summary judgment motion. In its response to appellee’s reply to the
summary judgment motion, appellant reasserted its arguments in support of summary
judgment against Maurer Electric on its claim and for judgment dismissing Maurer
Electric’s counterclaim. However, appellant retracted its motion concerning appellee:
{¶7} “Pertaining to Darrell Maurer personally, Advance concedes a question of
fact exists as to whether Mr. Maurer is personally liable for the entire sum of
$210,305.51, or only that portion of the claim that arose prior to the time Darrell Maurer
changed from a sole proprietorship to an LLC.” Reply Brief of Plaintiff to Defendants’
Response to Summary Judgment, April 28, 2009, p. 7.
{¶8} On July 31, 2009, the trial court entered summary judgment on appellant’s
claims against Maurer Electric for $210,305.51. The court overruled the motion for
summary judgment on the counterclaim, finding disputed facts precluded dismissing the
claim for tortious interference. The trial court denied the claim for summary judgment
against appellee, finding that appellant did not meet its burden of establishing its claim
that the corporate veil should be pierced.
{¶9} On November 9, 2009, Maurer Electric dismissed its claims against
appellant without prejudice. The trial court then cancelled the pending trial date and
closed the case. On June 9, 2010, the trial court issued the following judgment:
{¶10} “It has been called to the attention of the Court that this Court did not
clearly state its intention in its Judgment Entry dated July 31, 2009. This Court stated in
its July 31, 2009 Judgment Entry: ‘the within Judgment Entry grants judgment to plaintiff Richland County App. Case No. 10CA83 4
in the amount of $210,305.51 against defendant Maurer Electric LLC and specifically
indicates that plaintiff’s judgment is against defendant corporation only.’”
{¶11} “What this Court did not say in its earlier entry was that plaintiff’s efforts to
pierce the corporate veil and hold Darrell Maurer personally liable for the debts of
Maurer Electric LLC are not convincing and therefore Darrell Maurer is not personally
responsible for the debts of Maurer Electric LLC and therefore defendant’s counterclaim
for damages, costs and attorney fees against Darrell Maurer as an individual are hereby
Dismissed at defendant’s costs.”
{¶12} Appellant assigns a single error to this judgment:
{¶13} “WHETHER THE TRIAL COURT ERRED BY SUA SPONTE DISMISSING
THE PLAINTIFF’S CLAIMS AGAINST DEFENDANT DARRELL MAURER AS ‘NOT
CONVINCING’ WITHOUT PRIOR NOTICE.”
{¶14} Although the trial court does not cite to a particular Civil Rule on which it
based its decision to dismiss appellant’s claim against appellee, it appears from the
court’s language, finding appellant’s efforts to pierce the corporate veil unconvincing,
that the court entered summary judgment in favor of appellee when the only summary
judgment motion pending before the court was filed by appellant.
{¶15} The Ohio Supreme Court has held that Civ. R. 56 does not permit the
court to enter summary judgment in favor of a non-moving party. See Marshall v. Aaron
(1984), 15 Ohio St.3d 48, 472 N.E.2d 335, syllabus; Bowen v. Kil-Kare, Inc. (1992), 63
Ohio St.3d 84, 94, 585 N.E.2d 384.
{¶16} The court in the instant case did have a pending motion for summary
judgment; however, such motion was filed by appellant, not appellee. Appellant’s Richland County App. Case No. 10CA83 5
burden on the issue of piercing the corporate veil on summary judgment would be to
show that reasonable minds could only come to one conclusion and that conclusion is
adverse to appellee. Civ. R. 56(C). That is a different burden than appellant would
have to meet at trial, and the court therefore erred in concluding that because appellant
failed to meet this burden on summary judgment, the court should enter summary
judgment dismissing the claim. In fact, appellant conceded prior to the court’s decision
on summary judgment that disputed issues of material fact precluded summary
judgment on this issue. No dispositive motion was filed by appellee on this issue. The
court therefore erred in dismissing the claim on the basis that the court found
appellant’s efforts to pierce the corporate veil “unconvincing” as appellant had no duty to
convince the court of the merits of its claim in order to avoid dismissal at that point in the
proceedings. Richland County App. Case No. 10CA83 6
{¶17} The assignment of error is sustained.
{¶18} The judgment of the Richland County Common Pleas Court is reversed
and this cause is remanded to that court for further proceedings.
By: Edwards, J.
Hoffman, P.J. and
Delaney, J. concur
______________________________
JUDGES
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