[Cite as NuFloor Sys. v. Precision Environmental Co., 2011-Ohio-3669.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
NUFLOOR SYSTEMS, DIVISION OF C.A. No. 25432 TECHNICAL CONSTRUCTION SPECIALTIES, INC.
Appellant/Cross-Appellee APPEAL FROM JUDGMENT ENTERED IN THE v. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO PRECISION ENVIRONMENTAL CO. CASE No. CV 2008-10-7552
Appellee/Cross-Appellant
DECISION AND JOURNAL ENTRY
Dated: July 27, 2011
MOORE, Judge.
{¶1} Appellant, NuFloor Systems, Division of Technical Construction Specialties, Inc.,
appeals from the judgment of the Summit County Court of Common Pleas, which granted
summary judgment to appellee, Precision Environmental Co., on each of NuFloor’s claims. We
reverse in part, affirm in part, and remand the matter to the trial court.
I.
{¶2} This litigation arose out of the construction of the Akron Summit-County Public
Library. The following facts provide a background for the current dispute. In the construction of
the library, The Ruhlin Company served as the general contractor. Corporate Floors, Inc. served
as the prime flooring contractor. Corporate Floors engaged NuFloor as a subcontractor to install
the floor underlayment. NuFloor was required by contract to pour and install a product called
Super-Flo Top, which turned out to be defective and had to be removed and replaced with a 2
product called Sonoflow. Precision was engaged to remove the Super-Flo Top and allegedly
caused damage to the building in the process of removing the defective product. Corporate
Floors and NuFloor disagreed as to which company was ultimately responsible to pay for
Precision’s work and which company was ultimately responsible for damage Precision allegedly
caused.
{¶3} Precision sought payment from Corporate Floors and NuFloor. On December 3,
2004, Corporate Floors filed an interpleader action in the Cuyahoga County Court of Common
Pleas seeking a determination as to whom it was liable for payment. In that action, NuFloor filed
a counterclaim against Corporate Floors. Neither Corporate Floors nor NuFloor had a written
contract with Precision. Corporate Floors and NuFloor filed a joint motion to arbitrate only the
counterclaim pursuant to their contract. After arbitration, on October 18, 2006, Corporate Floors
and NuFloor filed a consent judgment entry in which the interpleader funds were released to
Precision, Corporate Floors agreed not to contest confirmation of the arbitration award, and the
parties agreed that “[n]othing in this Order shall be construed to bar or abridge any claim by
NuFloor against Precision” related to the library project.
{¶4} Approximately two years later, on October 29, 2008, NuFloor sued Precision in
the Summit County Court of Common Pleas and asserted claims for unjust enrichment, equitable
contribution, and equitable indemnification. Precision moved for summary judgment on several
grounds and, on May 4, 2010, the trial court granted summary judgment in its favor on all of
NuFloor’s causes of action.
{¶5} NuFloor timely filed a notice of appeal. NuFloor raises three assignments of error
for our review. Precision timely filed a notice of cross-appeal. Precision raises a cross-
assignment of error. 3
II.
NUFLOOR’S ASSIGNMENT OF ERROR I
“SUMMARY JUDGMENT WAS INAPPROPRIATE FOR ANY CLAIM IN THIS CASE, BECAUSE PRECISION DID NOT SUPPORT ITS MOTION WITH ANY EVIDENCE THAT CIV.R. 56(C) PERMITTED THE TRIAL COURT TO CONSIDER.”
{¶6} In its first assignment of error, NuFloor contends that the trial court should not
have entered summary judgment in favor of Precision on any claim because Precision failed to
support its motion with any evidence permitted by Civ.R. 56(C). NuFloor limited its argument
to the admissibility of the documents attached to Precision’s motion for summary judgment and
did not discuss any specific claim or its elements. We do not agree with NuFloor’s conclusion
because not all of the documents attached to Precision’s reply failed to satisfy the letter and spirit
of Civ.R. 56(C).
{¶7} Precision filed a motion for summary judgment to which it attached a copy of the
complaint in this action, as well as the complaint from an interpleader action filed in the
Cuyahoga County Court of Common Pleas by Corporate Floors against NuFloor and Precision.
The interpleader complaint included five attached exhibits: the contract between Corporate
Floors and NuFloor, an invoice from Precision to NuFloor, a notice of claim on Corporate
Floors’ project bond, a list of contractors involved in the library project, and pages five through
sixteen of an unidentified pleading containing NuFloor’s counterclaim against Corporate Floors.
Also attached were Corporate Floors’ and NuFloor’s “joint motion to stay proceedings pending
arbitration of NuFloor’s counterclaim” in the interpleader action, the consent judgment entry
between Corporate Floors and NuFloor in the interpleader action, a copy of the arbitration award
between Corporate Floors and NuFloor, an email containing the minutes of a meeting between
various contractors regarding the flooring materials, correspondence from various contractors 4
regarding change orders, copies of three change orders, and an additional copy of Precision’s
invoice to NuFloor. None of the attached documents was certified or incorporated into an
affidavit. In response, NuFloor filed a memorandum in opposition to summary judgment.
NuFloor’s first argument contended that Precision failed to attach any evidence in a form
permitted by Civ.R. 56(C). The memorandum in opposition also addressed the merits of each
claim. In reply, Precision pointed out inconsistencies in NuFloor’s position and attached a
certified copy of the complaint for interpleader in the Cuyahoga County Court of Common Pleas
including the attached exhibits, a certified copy of NuFloor’s answer and counterclaim, which
contains the counterclaim on pages five through sixteen as previously attached, uncertified
copies of Corporate Floors’ bond and NuFloor’s affidavit in support of a claim on the bond, a
certified copy of Corporate Floors and NuFloor’s “joint motion to stay proceedings pending
arbitration of NuFloor’s counterclaim” with additional certified materials including NuFloor’s
claim in arbitration, a certified copy of the consent judgment entry between Corporate Floors and
NuFloor, and a different copy of the arbitration award, which included the arbitrator’s signature
but was again uncertified. None of the documents attached to Precision’s reply was incorporated
into an affidavit.
{¶8} Civ.R. 56(C) provides that on summary judgment a court should consider only
“the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts
of evidence, and written stipulations of fact[.]” Generally, “[t]he proper procedure for
introducing evidentiary matter not specifically authorized by Rule 56(C) is to incorporate it by
reference in a properly framed affidavit pursuant to Rule 56(E).” Trubiani v. Graziani (Jan. 21,
1998), 9th Dist. No. 2629-M, at *2. Use of affidavits overcomes concerns related to the
authenticity of the evidence attached to the motion. Mitchell v. Ross (1984), 14 Ohio App.3d 75, 5
75, (“Documents which are not sworn, certified or authenticated by way of affidavit have no
evidentiary value and shall not be considered by the trial court.”). However, “a requirement that
papers be sworn or certified may be satisfied by a certification contained within the paper itself
rather than an external affidavit.” Costoff v. Akron General Medical Center, 9th Dist. No.
22010, 2004-Ohio-5166, at ¶14, citing Wall v. Firelands Radiology (1995), 106 Ohio App.3d
313, 334.
{¶9} In Costoff, the defendant attached copies of the trial court’s judgment entries from
a prior action between the same parties to his motion for summary judgment. Id. at ¶4. The
plaintiff argued that the uncertified copies did not constitute the type of evidence identified in
Civ.R. 56(C) or incorporated into an appropriate affidavit. Id. In his reply brief, the defendant
provided both an affidavit and certified copies of the trial court’s prior judgment entry. Id. The
trial court granted summary judgment in favor of the defendant. Id. On appeal, the plaintiff
argued that “the trial court could not consider its prior judgment entry, despite the inherent
authenticity of the certified copies.” Id. at ¶12. This Court held that because the judgment
entries were certified, their authenticity was not challenged and the judgment entries could be
“entered into the record without an accompanying affidavit.” Id. at ¶15. Costoff did not limit its
holding to certified judgment entries and, in fact, cited cases that allowed the admission of other
certified documents. See, Garver v. Beaver Twp. (Jan. 24, 1994), 7th Dist. No. 93 CA 8, at *1
(holding that although a court could not take judicial notice of a prior case, “[t]he record in that
case could be certified and filed in this case as evidence.”); Havens v. Port Clinton (May 23,
1986), 6th Dist. No. OT-85-26 (holding that a properly certified coroner’s verdict need not be in
the form of an affidavit). Accordingly, the certified court documents complied with Civ.R.
56(C) and could be considered for the purpose of summary judgment. Because NuFloor 6
objected to Precision’s unsworn and uncertified documents, the trial court should only have
considered the appropriately certified documents. The documents attached to the reply that were
inappropriate for consideration included: the uncertified copies of Corporate Floors’ bond and
NuFloor’s affidavit in support of a claim on the bond, and the arbitration award.
{¶10} We also recognize that this Court has repeatedly stated a preference for avoiding
summary judgment by ambush, see, e.g., Smith v. Ray Esser & Sons, Inc., 9th Dist. No.
10CA009798, 2011-Ohio-1529, at ¶15. The attachments to the reply brief did not cause
Precision to ambush NuFloor. The documents attached to the reply were merely certified copies
of many of the documents that had been attached to the original motion for summary judgment.
See JRC Holdings, Inc. v. Samsel Servs. Co., 166 Ohio App.3d 328, 2006-Ohio-2148, at ¶25-26
(holding that copies of reports attached to a summary judgment motion could be authenticated
when later attached to and authenticated by an affidavit, which was itself attached to the reply
brief in support of summary judgment). In this case, we have considered only those documents
that were properly certified and attached to the reply brief in support of summary judgment or
otherwise appropriate for consideration under Civ.R. 56(C).
{¶11} Ultimately, because Precision did provide some evidence that the trial court could
properly consider, we cannot agree with NuFloor’s position that there existed no Civ.R. 56
evidence for the trial court’s consideration.
{¶12} NuFloor’s first assignment of error is overruled.
NUFLOOR’S ASSIGNMENT OF ERROR II
“THE TRIAL COURT IMPROPERLY GRANTED SUMMARY JUDGMENT TO PRECISION ON NUFLOOR’S CLAIM FOR INDEMNIFICATION.”
{¶13} In its second assignment of error, NuFloor contends that the trial court improperly
granted summary judgment to Precision on NuFloor’s claim for indemnification. We agree. 7
{¶14} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co. (1996), 77 Ohio St.3d 102, 105. 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. (1983), 13 Ohio
App.3d 7, 12.
{¶15} Pursuant to Civ.R. 56(C), summary judgment is proper 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. (1977), 50 Ohio St.2d 317, 327.
{¶16} The party moving for summary judgment bears the initial burden of informing the
trial court of the basis for the motion and pointing to parts of the record that show the absence of
a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93.
Specifically, the moving party must support the motion by pointing to some evidence in the
record of the type listed in Civ.R. 56(C). Id. Once this burden is satisfied, the non-moving party
bears the burden of offering specific facts to show a genuine issue for trial. Id. at 293. The non-
moving party may not rest upon the mere allegations and denials in the pleadings but instead
must point to or submit some evidentiary material that demonstrates a genuine dispute over a
material fact. Henkle v. Henkle (1991), 75 Ohio App.3d 732, 735.
{¶17} In granting summary judgment in favor of Precision, the trial court relied upon the
premise that “[t]here is no special relationship between NuFloor and Precision. NuFloor
previously successfully argued that [Corporate Floors] was contractually responsible for paying 8
Precision, thus NuFloor did not contract with Precision. NuFloor and Precision were separate
contractors of [Corporate Floors] and there is no relationship between them which would support
vicarious or secondary liability.”
{¶18} Initially, we observe that Precision’s argument in its summary judgment motion
directed to the equitable indemnification claim does not contain any citations to the record.
Precision also asserted that a relationship was necessary between the parties in order for NuFloor
to recover on the theory of equitable indemnification. Precision then attempted to demonstrate
the lack of a relationship between itself and NuFloor. As noted above, in order to meet its
Dresher burden a party must point “to parts of the record that show the absence of a genuine
issue of material fact.” Dresher, 75 Ohio St.3d at 292-93. The introduction portion of
Precision’s motion for summary judgment included citations; however, even a thorough review
of those citations reveals that Precision has failed to demonstrate the absence of a genuine issue
of material fact. Precision relied on the unauthenticated change orders that were attached only to
the motion for summary judgment, as well as the arbitration award, which was attached to the
motion for summary judgment and the reply. Neither copy of the arbitration award was certified
or authenticated, even after NuFloor objected to the lack of authentication. Accordingly, the
arbitration award should not have been considered by the trial court. Precision did, however,
include a copy of its invoice to NuFloor seeking payment for its work on the project. The
invoice was attached as an exhibit to Corporate Floors’ previously resolved complaint for
interpleader filed in the Cuyahoga County Court of Common Pleas. Precision attached an
uncertified copy of this complaint and its exhibits to the motion for summary judgment and a
certified copy of this complaint and its exhibits to its reply in support of summary judgment.
Contrary to Precision’s position, this evidence suggested a relationship between NuFloor and 9
Precision. The certified copy of the joint motion for arbitration filed by Corporate Floors and
NuFloor in the interpleader action in Cuyahoga County states only that the parties disagree about
which party is responsible to pay Precision for its work.
{¶19} Precision’s argument in support of summary judgment attempted to establish that
no relationship existed between itself and NuFloor and, therefore, that equitable indemnification
is inappropriate. However, Precision primarily cited to documents that the trial court should not
have considered because they failed to comply with Civ.R. 56(C) and (E). Because this evidence
was inappropriate for consideration by the court, Precision failed to satisfy its Dresher burden by
pointing to some evidence in the record to demonstrate the lack of a genuine issue of material
fact for trial and thereby triggering NuFloor’s reciprocal burden to point to a genuine issue of
material fact. Id. at 293. In fact, Precision’s invoice that it sent to NuFloor suggested the
existence of a relationship between the two parties. Therefore, the trial court erred in granting
summary judgment to Precision on NuFloor’s equitable indemnification claim.
{¶20} Accordingly, NuFloor’s second assignment of error is sustained.
NUFLOOR’S ASSIGNMENT OF ERROR III
“THE TRIAL COURT IMPROPERLY GRANTED SUMMARY JUDGMENT TO PRECISION ON NUFLOOR’S CLAIM FOR UNJUST ENRICHMENT.”
{¶21} In its third assignment of error, NuFloor contends that the trial court improperly
granted summary judgment to Precision on the claim for unjust enrichment. We agree.
{¶22} Unjust enrichment consists of three elements: “(1) a benefit conferred by the
plaintiff upon the defendant, (2) knowledge by the defendant of the benefit, and (3) retention of
the benefit by the defendant under circumstances where it would be unjust to do so without
payment.” Natl./RS, Inc. v. Huff, 10th Dist. No. 10AP-306, 2010-Ohio-6530, at ¶28, citing
Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183. 10
{¶23} Precision’s summary judgment argument related to NuFloor’s unjust enrichment
claim is similarly bereft of citations to the record. Instead, Precision more directly referenced the
change orders and the arbitration of Corporate Floors’ dispute with NuFloor, neither of which,
again, was ever properly authenticated. The trial court then specifically relied upon the change
orders and arbitration in granting summary judgment. Essentially, the court ruled that Precision
properly demonstrated that NuFloor could not establish any of the elements of unjust enrichment.
In determining that NuFloor could not establish that it provided a benefit to Precision, the trial
court wrote that “[t]he $42,082 change order deducted amount was the amount liquidated by The
Ruhlin Company and passed down through a series of contractors. The amount was upheld in
arbitration as an appropriate deduction or loss between contracting parties – as such, this is not a
benefit conferred upon any party. When Precision was eventually paid by [Corporate Floors]
pursuant to the arbitration award, its invoice was also reduced for its share of the purported
damage to the Project.” The trial court again referenced the unauthenticated change orders in
stating that Precision had no knowledge of any benefit it may have received from NuFloor.
Finally, without reference to the record, the trial court wrote that “[t]here must be a tie of
causation between the parties” and on “these facts [Corporate Floors] is responsible for
NuFloor’s detrimental position, not Precision.” In reaching these conclusions, the trial court
specifically relied upon the change orders and the arbitration award. Without reference to these
materials, which were improperly placed before the court, Precision failed to meet its Dresher
burden by pointing to some evidence in the record that complied with Civ.R. 56(C) and (E) to
demonstrate the absence of a genuine issue of material fact. Dresher, 75 Ohio St.3d at 293.
Because Precision failed to carry its Dresher burden, NuFloor’s corresponding burden to then
produce evidence to point to a genuine issue of material fact was never triggered. Id. Therefore, 11
the trial court erred in granting summary judgment to Precision on NuFloor’s claim for unjust
enrichment.
{¶24} Accordingly, NuFloor’s third assignment of error is sustained.
PRECISION’S CROSS-ASSIGNMENT OF ERROR
“THE TRIAL COURT SHOULD HAVE GRANTED [PRECISION’S] MOTION FOR SUMMARY JUDGMENT ON COLLATERAL ESTOPPEL PRINCIP[LE]S.”
{¶25} In its cross-assignment of error, Precision contends that the trial court should have
granted its motion for summary judgment on the basis of collateral estoppel. We do not agree.
{¶26} “The modern view of res judicata embraces the doctrine of collateral estoppel,
which basically states that if an issue of fact or law actually is litigated and determined by a valid
and final judgment, such determination being essential to that judgment, the determination is
conclusive in a subsequent action between the parties, whether on the same or a different claim.”
(Italics sic). Hicks v. De La Cruz (1977), 52 Ohio St.2d 71, 74. More succinctly, collateral
estoppel in subsequent litigation requires identical parties and issues to those involved in the
original litigation. Goodson v. McDonough Power Equipment, Inc. (1983), 2 Ohio St.3d 193,
200.
{¶27} The trial court ruled that it was unable “to conclude that the identical issues were
necessarily determined between these parties.” This assignment of error, too, is predicated upon
inadmissible materials Precision submitted in support of its summary judgment motion. In its
motion for summary judgment on this issue, Precision relied exclusively upon the
unauthenticated change orders and arbitration award in an effort to establish that the Cuyahoga
County interpleader action involved the same parties and issues as this case. Precision
specifically contended that a “review of the arbitration award reveals the issues involving these 12
change orders were adjudicated as part of the claims raised in the arbitration.” Because Precision
relied exclusively on unauthenticated and, therefore, inadmissible documents in support of its
contention that this action involved the same parties and issues as the Cuyahoga County
interpleader action, it failed to meet its Dresher burden to point to “parts of the record that show
the absence of a genuine issue of material fact” and demonstrate that collateral estoppel barred
this action. Dresher, 75 Ohio St.3d at 292-93. Without evidence acceptable under Civ.R. 56(C)
and (E), Precision failed to prove that the same parties, Precision and NuFloor, and issues were
decided in the prior Cuyahoga County interpleader litigation and corresponding arbitration. For
this reason, we cannot say that the trial court erred in failing to grant summary judgment in favor
of Precision on the basis of collateral estoppel.
{¶28} Accordingly, Precision’s cross-assignment of error is overruled.
III.
{¶29} NuFloor’s first assignment of error is overruled. Its second and third assignments
of error are sustained. Precision’s cross-assignment of error is overruled. The judgment of the
Summit County Court of Common Pleas is reversed in part, affirmed in part, and the cause
remanded for further proceedings consistent with this opinion.
Judgment reversed in part, affirmed in part, and cause remanded.
There were reasonable grounds for this appeal. 13
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.
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(E). 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 Appellee/Cross-Appellant.
CARLA MOORE FOR THE COURT
WHITMORE, J. CONCURS
BELFANCE, P. J. CONCURS IN JUDGMENT ONLY, SAYING:
{¶30} I concur in the judgment of the majority. In reviewing the trial court’s ruling on
the motion for summary judgment, the majority considers several documents which are either
certified copies, or are attached to a certified copy of a document, despite the fact that those
documents are not accompanied by a supporting affidavit as expressly required by Civ.R. 56.
The majority concludes this is appropriate based upon Costoff v. Akron General Medical Center,
9th Dist. No. 22010, 2004-Ohio-5166. However, I view the majority opinion as inappropriately
expanding the reach of Costoff. Thus, I do not believe those documents are properly considered 14
for purposes of summary judgment. Nonetheless, because I conclude the majority reached the
correct result, I concur in its judgment.
APPEARANCES:
DANIEL M. WALPOLE , Attorney at Law, for Appellant/Cross-Appellee.
RONALD D. GREGORY, Attorney at Law, for Appellee/Cross-Appellant.