[Cite as Barconey v. Baiz, 2024-Ohio-6044.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Linda Barconey, DDS Court of Appeals No. L-23-1246
Appellant Trial Court No. CI0202102867
v.
Wessam Baiz, et al. DECISION AND JUDGMENT
Appellees Decided: December 27, 2024
*****
C. William Bair, for appellant.
Eugene F. Canestraro, for appellee, Wessam Baiz.
***** OSOWIK, J.
{¶ 1} In this breach of contract action, the plaintiff-appellant, Linda Barconey,
appeals a September 28, 2023 judgment of the Lucas County Court of Common Pleas,
which granted summary judgment in favor the defendant-appellee, Wessam Baiz. We
affirm.
I. Background
{¶ 2} Barconey is a dentist, who resides and works in California. In 2019,
Barconey hired a consulting and public media business called TCR Consulting Agency to assist her in developing business plans in a field “besides dentistry.” Barconey claims
that defendants, Wessam Baiz, of Ottawa Hills, Ohio and Christopher Ross, Chris Ross
Companies, LTD., of London, England, “operated [the] business at all relevant times.”
{¶ 3} According to Barconey, she and Baiz “entered into conversations” in May,
2019. The “general nature of the consultation involved [development of] a video sales
letter, CPA network enrollment, a ten day follow up sales copy, a hidden landing page on
the Defendant’s website, video editing for marking Dr. Barconey’s business, and
coaching from the Defendant.” Barconey claims that she agreed to pay $45,000 for these
services; that she satisfied her obligation, in full, by making “periodic payments,” which
she completed on October 16, 2019; and that the “defendants” mostly failed to perform
“any of the agreed upon services.” Barconey further claims that Defendant Ross “agreed
to prepare and publish” a video for Barconey to use in marketing her unidentified
business but that he “failed to perform the video” for which he was paid an undisclosed
amount.
{¶ 4} Barconey filed a three-count complaint on August 27, 2021, which she
amended on October 10, 2022. In her amended complaint, Barconey alleged that Baiz
breached an oral agreement for services (Count 1); that Ross breached an oral agreement
for failing to create the marketing video (Count 2); and that Baiz and Ross were unjustly
enriched “by failing to perform the services for which they were paid” (Count 3).
Barconey alleged that Baiz and Ross “operated through an agency” and that they should
be held jointly and severally liable.
2. {¶ 5} Baiz answered the amended complaint and exchanged discovery with
Barconey. On May 15, 2023, Baiz filed a motion for summary judgment, arguing that
Barconey’s contract for services was with “Team Chris Ross, LLC d.b.a. TCR Consulting
Agency” and that he, Baiz, was “merely an independent contractor” of the business
which was disclosed and known to Barconey. As a disclosed agent, Baiz argued that he
could not be held personally liable on the contract and therefore he was entitled to
judgment. Baiz attached a number of documents to his motion, including email
communications with Barconey that identified himself either as the “Team Lead” for
Team Chris Ross LLC or as “Vice President – Sales and Marketing” for TCR Consulting
Agency. Other emails between Barconey and a “TCR Executive Assistant” indicate that
Barconey’s payments were sent to TCR Consulting Agency. In one email, Barconey
wrote to the executive assistant, “I would like more clarity on the $45,000 sent to TCR
Consulting.” In his affidavit, Baiz specifically denied that Barconey “paid [him]
directly.”
{¶ 6} Barconey objected to the motion. In her attached affidavit, Barconey
acknowledged that Baiz “represented himself to be acting on behalf of Team Chris Ross”
in their “dealings.” But, she denied any knowledge that Baiz was an “independent
contractor,” which she claimed was a material fact, relative to the issue of establishing
Baiz’s personal liability.
{¶ 7} On September 28, 2023, the trial court granted judgment in favor of Baiz as
to Counts 1 and 3. Subsequently, Barconey dismissed the amended complaint against
3. Christopher Ross without prejudice under Civ.R. 41(A)(1)(a). Barconey also appealed
the court’s summary judgment ruling, raising a single assignment of error for our review:
ASSIGNMENT OF ERROR: The Trial Court committed reversible
error when it decided there were no debatable issues of fact and that Dr.
Barconey was informed Defendant Baiz was a disclosed agent of TCR, a
disclosed principal, and could not be liable to her.
II. Law and Analysis
{¶ 8} The appellate court reviews a grant of summary judgment de novo, standing
in the shoes of the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).
Summary judgment may only be granted when there remains no genuine issue of material
fact and, when construing the evidence in favor of the nonmoving party, reasonable
minds can only conclude that the moving party is entitled to judgment as a matter of law.
Civ. R. 56(C); Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). In a
motion for summary judgment, the moving party bears the initial burden of
demonstrating that there are no genuine issues of material facts regarding an essential
element of the nonmoving party’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996).
{¶ 9} The moving party must meet its burden by specifically referring to the
“pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence in the pending case, and written stipulations of fact, if any,” which
affirmatively demonstrate that no material questions of fact remain. Civ. R. 56(C). When
a properly supported motion for summary judgment is made, an adverse party may not
rest on mere allegations or denials in the pleadings, but must respond with specific facts 4. showing that there is a genuine issue of material fact for trial in accordance with Civ.R.
56(E). Id. A “material” fact is one which would affect the outcome of the suit under the
applicable substantive law. See, e.g., Meyer v. United Airlines, Inc. 2018-Ohio-259, ¶ 36
(6th Dist).
{¶ 10} “It is settled law in Ohio that where an agent enters into a contract on
behalf of a disclosed principal, the agent is not personally liable for that contract so long
as he is acting within the scope of his authority and acting in the name of the principal.”
Castillo v. Associated Pathologists, Inc., 2006-Ohio-6459, ¶ 22 (6th Dist.); see also Whitt
Sturtevant, LLP v. NC Plaza LLC, 2015-Ohio-3976, ¶ 96 (10th Dist.) (“Where an agent
acts for a disclosed principal, in the name of such principal, and within the scope of
authority, such agent is ordinarily not liable on the contracts the agent makes.”). An
“agent” is a person “‘who is authorized to act for or in place of another; a
representative.’” Marion v. Cendol, 2013-Ohio-3197, ¶ 16 (3d Dist.), quoting Black’s
Law Dictionary 72 (9th Ed.2009), and citing John Hancock Mut. Life Ins. Co. v. Luzio,
123 Ohio St. 616, (1931), syllabus (“In the absence of statutory definition, the term
‘agent,’ * * * should be given its legal meaning, as being one who is acting within the
scope of his authority in the business [e]ntrusted to him by his principal”).
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[Cite as Barconey v. Baiz, 2024-Ohio-6044.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Linda Barconey, DDS Court of Appeals No. L-23-1246
Appellant Trial Court No. CI0202102867
v.
Wessam Baiz, et al. DECISION AND JUDGMENT
Appellees Decided: December 27, 2024
*****
C. William Bair, for appellant.
Eugene F. Canestraro, for appellee, Wessam Baiz.
***** OSOWIK, J.
{¶ 1} In this breach of contract action, the plaintiff-appellant, Linda Barconey,
appeals a September 28, 2023 judgment of the Lucas County Court of Common Pleas,
which granted summary judgment in favor the defendant-appellee, Wessam Baiz. We
affirm.
I. Background
{¶ 2} Barconey is a dentist, who resides and works in California. In 2019,
Barconey hired a consulting and public media business called TCR Consulting Agency to assist her in developing business plans in a field “besides dentistry.” Barconey claims
that defendants, Wessam Baiz, of Ottawa Hills, Ohio and Christopher Ross, Chris Ross
Companies, LTD., of London, England, “operated [the] business at all relevant times.”
{¶ 3} According to Barconey, she and Baiz “entered into conversations” in May,
2019. The “general nature of the consultation involved [development of] a video sales
letter, CPA network enrollment, a ten day follow up sales copy, a hidden landing page on
the Defendant’s website, video editing for marking Dr. Barconey’s business, and
coaching from the Defendant.” Barconey claims that she agreed to pay $45,000 for these
services; that she satisfied her obligation, in full, by making “periodic payments,” which
she completed on October 16, 2019; and that the “defendants” mostly failed to perform
“any of the agreed upon services.” Barconey further claims that Defendant Ross “agreed
to prepare and publish” a video for Barconey to use in marketing her unidentified
business but that he “failed to perform the video” for which he was paid an undisclosed
amount.
{¶ 4} Barconey filed a three-count complaint on August 27, 2021, which she
amended on October 10, 2022. In her amended complaint, Barconey alleged that Baiz
breached an oral agreement for services (Count 1); that Ross breached an oral agreement
for failing to create the marketing video (Count 2); and that Baiz and Ross were unjustly
enriched “by failing to perform the services for which they were paid” (Count 3).
Barconey alleged that Baiz and Ross “operated through an agency” and that they should
be held jointly and severally liable.
2. {¶ 5} Baiz answered the amended complaint and exchanged discovery with
Barconey. On May 15, 2023, Baiz filed a motion for summary judgment, arguing that
Barconey’s contract for services was with “Team Chris Ross, LLC d.b.a. TCR Consulting
Agency” and that he, Baiz, was “merely an independent contractor” of the business
which was disclosed and known to Barconey. As a disclosed agent, Baiz argued that he
could not be held personally liable on the contract and therefore he was entitled to
judgment. Baiz attached a number of documents to his motion, including email
communications with Barconey that identified himself either as the “Team Lead” for
Team Chris Ross LLC or as “Vice President – Sales and Marketing” for TCR Consulting
Agency. Other emails between Barconey and a “TCR Executive Assistant” indicate that
Barconey’s payments were sent to TCR Consulting Agency. In one email, Barconey
wrote to the executive assistant, “I would like more clarity on the $45,000 sent to TCR
Consulting.” In his affidavit, Baiz specifically denied that Barconey “paid [him]
directly.”
{¶ 6} Barconey objected to the motion. In her attached affidavit, Barconey
acknowledged that Baiz “represented himself to be acting on behalf of Team Chris Ross”
in their “dealings.” But, she denied any knowledge that Baiz was an “independent
contractor,” which she claimed was a material fact, relative to the issue of establishing
Baiz’s personal liability.
{¶ 7} On September 28, 2023, the trial court granted judgment in favor of Baiz as
to Counts 1 and 3. Subsequently, Barconey dismissed the amended complaint against
3. Christopher Ross without prejudice under Civ.R. 41(A)(1)(a). Barconey also appealed
the court’s summary judgment ruling, raising a single assignment of error for our review:
ASSIGNMENT OF ERROR: The Trial Court committed reversible
error when it decided there were no debatable issues of fact and that Dr.
Barconey was informed Defendant Baiz was a disclosed agent of TCR, a
disclosed principal, and could not be liable to her.
II. Law and Analysis
{¶ 8} The appellate court reviews a grant of summary judgment de novo, standing
in the shoes of the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).
Summary judgment may only be granted when there remains no genuine issue of material
fact and, when construing the evidence in favor of the nonmoving party, reasonable
minds can only conclude that the moving party is entitled to judgment as a matter of law.
Civ. R. 56(C); Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). In a
motion for summary judgment, the moving party bears the initial burden of
demonstrating that there are no genuine issues of material facts regarding an essential
element of the nonmoving party’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996).
{¶ 9} The moving party must meet its burden by specifically referring to the
“pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence in the pending case, and written stipulations of fact, if any,” which
affirmatively demonstrate that no material questions of fact remain. Civ. R. 56(C). When
a properly supported motion for summary judgment is made, an adverse party may not
rest on mere allegations or denials in the pleadings, but must respond with specific facts 4. showing that there is a genuine issue of material fact for trial in accordance with Civ.R.
56(E). Id. A “material” fact is one which would affect the outcome of the suit under the
applicable substantive law. See, e.g., Meyer v. United Airlines, Inc. 2018-Ohio-259, ¶ 36
(6th Dist).
{¶ 10} “It is settled law in Ohio that where an agent enters into a contract on
behalf of a disclosed principal, the agent is not personally liable for that contract so long
as he is acting within the scope of his authority and acting in the name of the principal.”
Castillo v. Associated Pathologists, Inc., 2006-Ohio-6459, ¶ 22 (6th Dist.); see also Whitt
Sturtevant, LLP v. NC Plaza LLC, 2015-Ohio-3976, ¶ 96 (10th Dist.) (“Where an agent
acts for a disclosed principal, in the name of such principal, and within the scope of
authority, such agent is ordinarily not liable on the contracts the agent makes.”). An
“agent” is a person “‘who is authorized to act for or in place of another; a
representative.’” Marion v. Cendol, 2013-Ohio-3197, ¶ 16 (3d Dist.), quoting Black’s
Law Dictionary 72 (9th Ed.2009), and citing John Hancock Mut. Life Ins. Co. v. Luzio,
123 Ohio St. 616, (1931), syllabus (“In the absence of statutory definition, the term
‘agent,’ * * * should be given its legal meaning, as being one who is acting within the
scope of his authority in the business [e]ntrusted to him by his principal”).
{¶ 11} Under the rule articulated above, Barconey’s claim against Baiz must fail
absent a showing that either Baiz was not acting within his capacity as an agent of TCL
or was not acting in the name of TCL. Castillo at ¶ 22. In her brief, Barconey denies
ever receiving “any information. . . that [Baiz] was an . . . agent” of Ross or TCR.
(Appellant’s brief at 7). However, the record firmly establishes that she was fully aware
5. that Baiz was acting in his representative, not personal, capacity. That is, Baiz negotiated
the oral contract with Barconey in his capacity as an agent of TCL and in the name of
TCL. Indeed, according to Barconey’s own affidavit, when she “entered into
negotiations and discussion” with Baiz, he “represented himself to be acting on behalf of
Team Chris Ross.” (Barconey Aff. at ¶ 2, 5). Consistent with those representations, Baiz
was identified as “a Team Leader and a Vice President for sales and marketing of TCR
Consulting” and “acting with full authority for Team Chris Ross.” (Barconey Aff. at ¶ 8,
9). Barconey also confirmed that she “paid $45,000 to Baiz in care of Team Chris Ross.”
(Barconey Aff. at ¶ 3). In other words, the evidence establishes that Baiz was acting as
TCR’s agent in negotiating the consulting agreement with Barconey and not in his
personal capacity. For that reason, he may not be held personally liable on the contract
with TCR. Vancrest Mgt. Corp. v. Mullenhour, 2019-Ohio-2958, ¶ 14 (3d Dist.).
{¶ 12} Nonetheless, Barconey insists that an issue of fact remains as to Baiz’s
personal liability, because evidence in the record indicates that Baiz was “an independent
contractor” of TCR. Indeed, Baiz asserted in his affidavit that he had no “ownership
interest” in TCR and that he worked for the business as “an independent contractor for
Team Chris Ross, LLC and TCR Consulting Agency.” (Baiz Aff. at ¶ 11, 12). Just as
Barconey denied any knowledge that Baiz was an “agent” of TCR, she also denies any
knowledge that he was “independent contract” of the business. Instead, Barconey knew
Baiz as a “team leader” or “vice president.” She claims that such titles do not “remotely
suggest [that] he was an independent contract.” (Appellant’s brief at 7). But, she fails to
establish any path to recovering against Baiz in his personal capacity. That is, she cites
6. no authority that Baiz’s status as independent contractor, standing alone, subjects him to
personal liability. We find that whether Baiz was acting as an employee or independent
contractor is irrelevant to the issue of whether he was acting in his representative
capacity, i.e. as an agent, in his dealings with Barconey. And here, the parties agree that
Baiz disclosed the fact he was an agent of TCL. See, e.g., Plain Dealer Publishing Co. v.
Worrell, 2008-Ohio-4846 (8th Dist.) (Where “employee” disclosed that she was working
on behalf of advertising company’s behalf and executed two contracts on its behalf, “such
that the [third party] publishing company knew that it was not dealing with employee
individually,” the employee was not liable on the contracts). Because Baiz is not a party
to the agreement, in his individual capacity, he could not have breached it.
{¶ 13} Because Barconey can point to no evidence that Baiz acted outside the
scope of his authority, and because Baiz was acting for a disclosed agent, he is not
personally liable under the services contract between Barconey and TCL. Nat'l Church
Residences First Cmty. Vill. v. Kessler, 2023-Ohio-1437, ¶ 19-20 (3d Dist.).
Accordingly, the trial court properly granted summary judgment in Baiz’s favor as to
Count 1 of the amended complaint, and Barconey’s assignment of error is found not well-
taken. Additionally, because Barconey does not challenge the trial court’s judgment as to
her unjust enrichment claim, set forth in Count 3, we affirm that part of the judgment as
well. See App.R. 12(A)(2).
7. III. Conclusion
{¶ 14} Barconey’s assignment of error is found not well-taken, and the judgment
of the Lucas County Court of Common Pleas is affirmed. Barconey is ordered to pay the
costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
8.