[Cite as Midwest Tel., Inc. v. Speelman Elec., Inc., 2014-Ohio-1034.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
MIDWEST TELEPHONE C.A. No. 26881
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE SPEELMAN ELECTRIC COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 2011-08-4529
DECISION AND JOURNAL ENTRY
Dated: March 19, 2014
MOORE, Presiding Judge.
{¶1} Plaintiff-Appellant, Midwest Telephone, Inc. (“Midwest”), appeals from the
March 19, 2013 judgment entry of the Summit County Court of Common Pleas. We affirm.
I.
{¶2} This matter stems from an alleged agreement between Midwest and Defendant-
Appellee, Speelman Electric, Inc. (“Speelman”), regarding construction at the Buchtel/Perkins
Community Learning Center Project. Midwest claims that Speelman agreed to subcontract with
it for technological/electrical services. In reliance upon this agreement, Midwest asserts that it
secured a performance bond and purchased supplies/products. However, Speelman ultimately
hired another company to provide these services, and Midwest did not receive the bid.
{¶3} In August of 2011, Midwest filed a complaint against Speelman alleging (1)
breach of contract, (2) promissory estoppel, and (3) bad faith. The complaint was originally filed
in Trumbull County and later transferred to Summit County. Speelman filed an answer to the 2
complaint, along with a motion to dismiss, or in the alternative, a motion for a more definite
statement. In response to Speelman’s motions, Midwest filed a pleading and attached two
supporting exhibits: (A) a purchase order in the amount of $93,026.00, along with an email
exchange between Midwest and Speelman regarding the Buchtel/Perkins project, and (B) an
invoice in the amount of $9,030.00 for a performance payment bond, as well as related
documents.
{¶4} In denying Speelman’s motions, the trial court relied only upon the allegations set
forth in the complaint, and did not consider the exhibits attached to Midwest’s responsive
pleading. The trial court did, however, order Midwest to file an amended complaint within
fourteen days to include any documents supporting its breach of contract claim. The record
indicates that Midwest never filed an amended complaint as ordered by the trial court. Instead,
Midwest moved for clarification, asking the trial court whether it still desired an amended
complaint to be filed because the documents supporting its breach of contract claim were already
attached to its prior pleading.1
{¶5} After the parties concluded discovery, Midwest filed a motion for summary
judgment seeking damages for the cost of the performance bond, the cost of supplies/products,
and any lost profits it may have incurred due to Speelman’s alleged breach. Further, the record
indicates that Midwest did not attach any supporting Civ.R. 56(C) evidence to its summary
judgment motion.
{¶6} Speelman filed a cross-motion for summary judgment seeking either judgment in
its favor, and/or the involuntary dismissal of Midwest’s complaint. In support of its summary
1 We note that the trial court did not journalize a response to Midwest’s motion for clarification. 3
judgment motion, Speelman attached: (1) the unsigned affidavit of Richard Speelman, President
of Speelman Electric, Inc. (2) a letter notifying Midwest that it hired U.S. Communications as
the subcontractor for the technology/electrical services on the Buchtel/Perkins project, (3) the
unsigned affidavit of Mike Yaich, the Buchtel/Perkins project manager/estimator, and (4)
Midwest’s responses to interrogatories and requests for production of documents. Speelman
later filed the original signed and notarized affidavits with the trial court.
{¶7} Midwest then filed (1) an amended motion for summary judgment, which
included exhibits, and (2) a response to Speelman’s motion for summary judgment. We note that
Midwest’s response to Speelman’s summary judgment motion failed to set forth any separate
arguments in opposition, but, instead, incorporated the arguments made in its own motion for
summary judgment. Speelman also filed a brief in opposition to Midwest’s motion/amended
motion for summary judgment, and a reply brief in support of its own motion for summary
judgment.
{¶8} The trial court granted Speelman’s motion for summary judgment, and denied
Midwest’s motion for summary judgment. In doing so, the trial court stated that “the evidence
attached to Midwest’s motion for summary judgment includes alleged emails between the two
companies. None of these documents are properly authenticated by affidavit or other admissible
evidence and are therefore stricken and will not be considered as supporting evidence.” Further,
the trial court stated that Midwest presented no supporting evidence for breach of contract,
promissory estoppel, or bad faith. The trial court concluded that Speelman “has set forth
evidence and testimony that establishes there are no genuine issues of material fact and that []
[Speelman] is entitled to summary judgment as to all claims asserted by Midwest [].”
{¶9} Midwest appealed, raising one assignment of error for our review. 4
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED ERROR IN SUSTAINING [SPEELMAN’S] MOTION FOR SUMMARY JUDGMENT[.]
{¶10} In its sole assignment of error, Midwest argues that the trial court erred in
sustaining Speelman’s motion for summary judgment because Midwest’s “response attached
exhibits sufficient to demonstrate that genuine issues of material fact were present as to whether
or not the parties entered into a contract and whether [Speelman] breached the same.” Further,
Midwest argues that its response set forth a “colorable claim” for the alternative theory of
promissory estoppel.2 Because Midwest has not assigned as error the trial court’s denial of its
motion for summary judgment, we will limit our discussion accordingly.
{¶11} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,
77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court, viewing the facts
of the case in the light most favorable to the non-moving party and resolving any doubt in favor
of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).
{¶12} Pursuant to Civ.R. 56(C), summary judgment is proper only if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶13} To prevail on a motion for summary judgment, the party moving for summary
judgment must be able to point to evidentiary materials that show that there is no genuine issue
2 Midwest has not argued that the trial court improperly struck the exhibits attached to its amended motion for summary judgment. 5
as to any material fact, and that the moving party is entitled to judgment as a matter of law.
Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once a moving party satisfies its burden of
supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to
Civ.R.
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[Cite as Midwest Tel., Inc. v. Speelman Elec., Inc., 2014-Ohio-1034.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
MIDWEST TELEPHONE C.A. No. 26881
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE SPEELMAN ELECTRIC COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 2011-08-4529
DECISION AND JOURNAL ENTRY
Dated: March 19, 2014
MOORE, Presiding Judge.
{¶1} Plaintiff-Appellant, Midwest Telephone, Inc. (“Midwest”), appeals from the
March 19, 2013 judgment entry of the Summit County Court of Common Pleas. We affirm.
I.
{¶2} This matter stems from an alleged agreement between Midwest and Defendant-
Appellee, Speelman Electric, Inc. (“Speelman”), regarding construction at the Buchtel/Perkins
Community Learning Center Project. Midwest claims that Speelman agreed to subcontract with
it for technological/electrical services. In reliance upon this agreement, Midwest asserts that it
secured a performance bond and purchased supplies/products. However, Speelman ultimately
hired another company to provide these services, and Midwest did not receive the bid.
{¶3} In August of 2011, Midwest filed a complaint against Speelman alleging (1)
breach of contract, (2) promissory estoppel, and (3) bad faith. The complaint was originally filed
in Trumbull County and later transferred to Summit County. Speelman filed an answer to the 2
complaint, along with a motion to dismiss, or in the alternative, a motion for a more definite
statement. In response to Speelman’s motions, Midwest filed a pleading and attached two
supporting exhibits: (A) a purchase order in the amount of $93,026.00, along with an email
exchange between Midwest and Speelman regarding the Buchtel/Perkins project, and (B) an
invoice in the amount of $9,030.00 for a performance payment bond, as well as related
documents.
{¶4} In denying Speelman’s motions, the trial court relied only upon the allegations set
forth in the complaint, and did not consider the exhibits attached to Midwest’s responsive
pleading. The trial court did, however, order Midwest to file an amended complaint within
fourteen days to include any documents supporting its breach of contract claim. The record
indicates that Midwest never filed an amended complaint as ordered by the trial court. Instead,
Midwest moved for clarification, asking the trial court whether it still desired an amended
complaint to be filed because the documents supporting its breach of contract claim were already
attached to its prior pleading.1
{¶5} After the parties concluded discovery, Midwest filed a motion for summary
judgment seeking damages for the cost of the performance bond, the cost of supplies/products,
and any lost profits it may have incurred due to Speelman’s alleged breach. Further, the record
indicates that Midwest did not attach any supporting Civ.R. 56(C) evidence to its summary
judgment motion.
{¶6} Speelman filed a cross-motion for summary judgment seeking either judgment in
its favor, and/or the involuntary dismissal of Midwest’s complaint. In support of its summary
1 We note that the trial court did not journalize a response to Midwest’s motion for clarification. 3
judgment motion, Speelman attached: (1) the unsigned affidavit of Richard Speelman, President
of Speelman Electric, Inc. (2) a letter notifying Midwest that it hired U.S. Communications as
the subcontractor for the technology/electrical services on the Buchtel/Perkins project, (3) the
unsigned affidavit of Mike Yaich, the Buchtel/Perkins project manager/estimator, and (4)
Midwest’s responses to interrogatories and requests for production of documents. Speelman
later filed the original signed and notarized affidavits with the trial court.
{¶7} Midwest then filed (1) an amended motion for summary judgment, which
included exhibits, and (2) a response to Speelman’s motion for summary judgment. We note that
Midwest’s response to Speelman’s summary judgment motion failed to set forth any separate
arguments in opposition, but, instead, incorporated the arguments made in its own motion for
summary judgment. Speelman also filed a brief in opposition to Midwest’s motion/amended
motion for summary judgment, and a reply brief in support of its own motion for summary
judgment.
{¶8} The trial court granted Speelman’s motion for summary judgment, and denied
Midwest’s motion for summary judgment. In doing so, the trial court stated that “the evidence
attached to Midwest’s motion for summary judgment includes alleged emails between the two
companies. None of these documents are properly authenticated by affidavit or other admissible
evidence and are therefore stricken and will not be considered as supporting evidence.” Further,
the trial court stated that Midwest presented no supporting evidence for breach of contract,
promissory estoppel, or bad faith. The trial court concluded that Speelman “has set forth
evidence and testimony that establishes there are no genuine issues of material fact and that []
[Speelman] is entitled to summary judgment as to all claims asserted by Midwest [].”
{¶9} Midwest appealed, raising one assignment of error for our review. 4
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED ERROR IN SUSTAINING [SPEELMAN’S] MOTION FOR SUMMARY JUDGMENT[.]
{¶10} In its sole assignment of error, Midwest argues that the trial court erred in
sustaining Speelman’s motion for summary judgment because Midwest’s “response attached
exhibits sufficient to demonstrate that genuine issues of material fact were present as to whether
or not the parties entered into a contract and whether [Speelman] breached the same.” Further,
Midwest argues that its response set forth a “colorable claim” for the alternative theory of
promissory estoppel.2 Because Midwest has not assigned as error the trial court’s denial of its
motion for summary judgment, we will limit our discussion accordingly.
{¶11} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,
77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court, viewing the facts
of the case in the light most favorable to the non-moving party and resolving any doubt in favor
of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).
{¶12} Pursuant to Civ.R. 56(C), summary judgment is proper only if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶13} To prevail on a motion for summary judgment, the party moving for summary
judgment must be able to point to evidentiary materials that show that there is no genuine issue
2 Midwest has not argued that the trial court improperly struck the exhibits attached to its amended motion for summary judgment. 5
as to any material fact, and that the moving party is entitled to judgment as a matter of law.
Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once a moving party satisfies its burden of
supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to
Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere
allegations or denials of the moving party’s pleadings. Instead, by affidavit or as otherwise
provided in this rule, the non-moving party “must set forth specific facts showing that there is a
genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall
be entered against the party.” Civ.R. 56(E); see also State ex rel. Zimmerman v. Tompkins, 75
Ohio St.3d 447, 449 (1996).
{¶14} However, the non-moving party’s reciprocal burden does not arise until after the
moving party has met its initial evidentiary burden. To do so, the moving party must set forth
evidence of the limited types enumerated in Civ.R. 56(C), specifically, “the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence,
and written stipulations of fact[.]” Civ.R. 56(C) further provides that “[n]o evidence or
stipulation may be considered except as stated in this rule.”
{¶15} In its complaint, Midwest alleged that, in October of 2010, it entered into an
agreement with Speelman to provide technology services for the Buchtel/Perkins Community
Learning Center Project. In reliance upon that agreement, Midwest claimed that it secured a
performance bond and purchased products. Midwest further asserted that Speelman breached the
agreement by contracting with another company for the same services, and that Speelman acted
in bad faith (1) in negotiating the agreement, and (2) in utilizing Midwest’s information to secure
another bid. 6
{¶16} “‘A contract is generally defined as a promise, or a set of promises, actionable
upon breach. Essential elements of a contract include an offer, acceptance, contractual capacity,
consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent
and legality of object and of consideration.’” Howkins v. Walsh Jesuit High School, 9th Dist.
Summit No. 26438, 2013-Ohio-917, ¶ 16, quoting Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-
Ohio-2985, ¶ 16. “A meeting of the minds as to the essential terms of the contract is a
requirement to enforcing the contract.” Kostelnik at ¶ 16, citing Episcopal Retirement Homes,
Inc. v. Ohio Dept. of Indus. Relations, 61 Ohio St.3d 366, 369 (1991).
{¶17} Further, “[t]o succeed on a promissory estoppel claim, a party must show (1) a
clear and unambiguous promise; (2) reliance on that promise; (3) reliance that was reasonable
and foreseeable; and (4) damages caused by that reliance.” Howkins at ¶ 22, quoting Current
Source, Inc. v. Elyria City School Dist., 157 Ohio App.3d 765, 2004-Ohio-3422, ¶ 31 (9th Dist.).
{¶18} The Supreme Court of Ohio has described bad faith as “‘a general and somewhat
indefinite term. It has no constricted meaning. It cannot be defined with exactness. It is not
simply bad judgment. It is not merely negligence. It imports a dishonest purpose or some moral
obliquity. It implies conscious doing of wrong. It means a breach of a known duty through some
motive of interest or ill will. * * * .’” Myers v. Steiner, 9th Dist. Summit No. 25166, 2011-Ohio-
576, ¶ 17, quoting State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs, 127 Ohio St.3d 202,
2010-Ohio-5073, ¶ 8.
{¶19} Here, in its summary judgment motion, Speelman argued that it is entitled to
judgment as a matter of law on Midwest’s claims for breach of contract, promissory estoppel and
bad faith because no express or implied contract existed between the parties with regard to the
Buchtel/Perkins project, and Speelman made no promises or misrepresentations to Midwest. To 7
satisfy its Dresher burden, Speelman attached the affidavits of Richard Speelman and Mike
Yaich, along with a letter notifying Midwest that it hired U.S. Communications to perform the
services, and Midwest’s responses to interrogatories and requests for production of documents.
{¶20} Richard Speelman, president of the company, attested that: (1) Speelman was the
prime contractor for the Buchtel/Perkins project with regard to the electrical/fire
alarm/technology bid package; (2) Midwest was one of several technology subcontractors that
submitted a bid for the technology portion of the electrical work; (3) in October of 2010,
Midwest sent a written proposal to Speelman for a technology package in the amount of
$670,000.00; (4) Speelman never accepted Midwest’s proposal, verbally or in writing, nor did it
instruct Midwest to order and/or purchase materials; (5) no contract was entered into between
Speelman and Midwest with respect to the Buchtel/Perkins project; (6) Speelman never issued
Midwest a purchase order, nor did it approve any materials allegedly purchased by Midwest for
this project; (6) in December of 2010, Speelman sent a letter to Midwest indicating that it chose
another subcontractor to provide the technology package for the Buchtel/Perkins project; (7)
Speelman never promised to hire Midwest for the Buchtel/Perkins project or to reimburse it for a
performance bond or materials; and (8) Speelman has not made any misrepresentations to
Midwest regarding this project, nor has it acted in bad faith.
{¶21} Mike Yaich, project manager/estimator for Speelman, attested that: (1) Speelman
never instructed Midwest to order/purchase materials for the Buchtel/Perkins project; (2) no
contract, verbal or in writing, ever existed between Speelman and Midwest with respect to this
project; (3) Speelman was instructed that all contractors and subcontractors for this project must
be signatories to the Project Labor Agreement; (4) between October and November of 2010,
Speelman and Midwest communicated regarding whether Midwest was a signatory to the Project 8
Labor Agreement; (5) Speelman and Midwest agreed to meet the week of November 8, 2010, in
order to discuss the Project Labor Agreement and other issues; (6) Midwest cancelled the
meeting due to unresolved issues with the Project Labor Agreement; (7) in a telephone
conversation, Midwest specifically inquired whether it should order materials for this project,
and was specifically told by Yaich not to order any materials until it received a purchase order
from Speelman, and approval of its material submittals; (8) Speelman never issued a purchase
order to Midwest, nor did it approve any materials for the project; and (9) Speelman never made
any promises or misrepresentations to Midwest regarding this project, nor did Speelman act in
bad faith.
{¶22} Additionally, the letter dated December 15, 2010, confirmed that Speelman
reviewed Midwest’s bid, along with other bids, and determined that U.S. Communications was
better suited for the Buchtel/Perkins project.
{¶23} Based upon the affidavits of Mr. Speelman and Mr. Yaich, along with the
December 15, 2010 letter to Midwest, we conclude that Speelman met its initial Dresher burden
by pointing to evidentiary materials showing that there is no genuine issue as to any material
fact, and that Speelman is entitled to judgment as a matter of law on the claims of breach of
contract, promissory estoppel, and bad faith set forth in Midwest’s complaint. See Dresher, 75
Ohio St.3d at 293. Through its evidence, Speelman demonstrated that Midwest failed to prove
the elements necessary for breach of contract, promissory estoppel, and bad faith because (1)
Speelman never accepted Midwest’s bid offer for technology/electrical services on the
Buchtel/Perkins project, (2) Speelman made no promises to Midwest regarding whether Midwest
would ultimately be hired for the project, nor did it instruct Midwest take out a performance 9
bond or order supplies, and (3) Speelman did not negotiate in bad faith with Midwest during the
bid process.
{¶24} The Dresher burden then shifted to Midwest to set forth specific facts
demonstrating that a “genuine triable issue” existed. State ex rel. Zimmerman, 75 Ohio St.3d at
449; see Civ.R. 56(E). In response to Speelman’s motion, Midwest rested upon the arguments
set forth in its own amended motion for summary judgment, which were based solely upon the
exhibits attached thereto. However, as explained above, the trial court struck these exhibits from
the record because of their failure to comply with the evidentiary requirements set forth in
Civ.R.56(C). As such, Midwest did not demonstrate the existence of any genuine triable issues,
and failed to meet its reciprocal Dresher burden.
{¶25} Therefore, even in construing the facts in a light most favorable to Midwest, we
cannot say that the trial court erred in granting Speelman’s motion for summary judgment on the
claims of breach of contract, promissory estoppel, and bad faith.
{¶26} Accordingly, Midwest’s assignment of error is overruled.
III.
{¶27} In overruling Midwest’s sole assignment of error, the judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27. 10
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. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE FOR THE COURT
BELFANCE, J. HENSAL, J. CONCUR.
APPEARANCES:
ROBERT J. ROHRBAUGH, Attorney at Law, for Appellant.
MARK BERNLOHR and ALAN M. MEDVICK, Attorneys at Law, for Appellee.