[Cite as Vaco, L.L.C. v. Semco Inc., 2026-Ohio-986.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
VACO LLC, CASE NO. 9-25-20
PLAINTIFF-APELLEE,
v.
SEMCO, INC., OPINION AND JUDGMENT ENTRY DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court General Division Trial Court No. 2024-CV-0205
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: March 23, 2026
APPEARANCES:
Kirsten M. Cox for Appellant
Kimberly Ingram-Hogan and Keith S. Anderson for Appellee Case No. 9-25-20
WILLAMOWSKI, J.
{¶1} Defendant-appellant Semco, Inc. (“Semco”) brings this appeal from the
judgment of the Court of Common Pleas of Marion County granting summary
judgment to Plaintiff-appellee Vaco LLC (“Vaco”). On appeal, Semco claims that
the trial court erred by 1) striking an affidavit of a witness, 2) denying a motion to
modify the case schedule, and 3) granting summary judgment when there was a
genuine issue of material fact. For the reasons set forth below, the judgment is
affirmed in part and reversed in part.
{¶2} This appeal arises from a dispute regarding an oral contract. In June of
2023, Semco agreed to use Vaco to provide accounting services. Vaco claims that
Semco never paid for the work done. Semco claims that Vaco never completed the
work that was the subject of the contract.
{¶3} On May 3, 2024, Vaco filed a complaint for breach of contract and
unjust enrichment. The complaint alleged that Vaco provided a consultant to work
as a part-time controller to Semco. According to Vaco, Semco agreed to pay an
hourly rate of $120.00 for consultant services. Vaco then assigned Glenn Smith
(“Smith”) to work with Semco and paid Smith for his labor. Vaco sent invoices
totaling $39,250.00 to Semco, but the invoices were not paid. Vaco attached copies
of the invoices to the complaint.
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{¶4} On June 28, 2024, Semco filed its answer denying most of the
allegations in the complaint. Semco claimed that Vaco failed to provide a
competent controller and thus there was no breach of contract or unjust enrichment.
Semco then filed counterclaims for negligence and fraud. Vaco filed an answer to
the counterclaims and denied them.
{¶5} On September 11, 2024, the magistrate filed a scheduling order setting
a discovery deadline for December 11, 2024. The order also set a deadline of
January 13, 2025 for dispositive motions to be filed. On that same day, the trial
court granted leave to Semco for them to file an additional counterclaim for breach
of contract. On October 22, 2024, Vaco filed an answer to Semco’s amended
counterclaim despite no such amended counterclaim having been filed yet.
{¶6} On January 2, 2025, Vaco filed a motion to amend the scheduling order
and to compel discovery. The motion claimed that Semco had failed to respond to
discovery served on October 30, 2024. The motion also requested that Semco
provide dates for a requested deposition within seven days of retaining new counsel,
as the prior counsel had withdrawn. The trial court granted the motion and extended
the discovery deadline until January 24, 2025, and the dispositive motion deadline
to March 13, 2025. On January 28, 2025, the trial court ordered Semco to retain
new counsel and again noted that Semco still had not complied with discovery
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demands. The trial court warned Semco that if it did not comply with the discovery
demands, Semco could be sanctioned.
{¶7} On February 24, 2025, Semco filed its amended counterclaim alleging
that Vaco had breached the contract with Semco. Semco alleged that it had suffered
damages in the amount of $50,000.00 due to the breach. On February 27, 2025, the
trial court extended the discovery deadline to March 5, 2025, set a deposition
deadline of March 31, 2025, and the dispositive motion deadline to April 7, 2025.
Semco later filed a motion to modify the case schedule, moving the discovery
deadline to June 5, 2025. The motion was based upon the fact that discovery had
led to potential additional damages. The trial court denied this motion on April 16,
2025.
{¶8} On April 4, 2025, Vaco filed a motion for summary judgment on the
complaint and as to all counterclaims. Semco filed a response to the motion on May
2, 2025. The trial court granted the motion for summary judgment on June 18, 2025.
Semco appealed from this judgment and raised the following assignments of error
on appeal.
First Assignment of Error
The trial court erred when it held that the affidavit of Shelby Furman should be stricken.
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Second Assignment of Error
The trial court erred when it failed to find a genuine issue of material fact existed with regard to the terms of the oral agreement.
Third Assignment of Error
The trial court erred when it failed to find a genuine issue of material fact existed with regard to Semco Inc.’s counterclaim for fraud.
Fourth Assignment of Error
The trial court abused its discretion when it denied Semco Inc.’s motion to modify the case schedule.
In the interest of clarity, we will address the assignments of error out of order.
Summary Judgment
{¶9} In Semco’s second and third assignments of error, Semco claims that
the trial court erred by granting summary judgment to Vaco.
An appellate court reviews a trial court’s summary judgment decision de novo, independently and without deference to the trial court's decision. * * * Summary judgment is appropriate only “when the requirements of Civ.R. 56(C) are met.” * * * The party moving for summary judgment must establish: (1) that there are no genuine issues of material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. * * * In ruling on a motion for summary judgment, a court may not “weigh evidence or choose among reasonable inferences * * *.” * * * Rather, the court must consider the above standard while construing all evidence in favor of the non-movant. * * *
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The party moving for summary judgment must identify the basis of the motion to allow the non-movant a “meaningful opportunity to respond.” * * * In its motion, the moving party “must state specifically which areas of the opponent’s claim raise no genuine issue of material fact and such assertion may be supported by affidavits or otherwise as allowed by Civ.R. 56(C).” * * * If the moving party fails to meet its burden, summary judgment is inappropriate; however, if the moving party meets its initial burden, the non-moving party has a “reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial * * *.”
(Citations omitted). Lillie v. Meachem, 2009-Ohio-4934, ¶21-22 (3d Dist.). “[I]n
considering whether to grant a motion for summary judgment, the trial court may
not weigh the evidence and thereby enter summary judgment to the party with the
stronger case: ‘such weighing of evidence is inappropriate in the summary judgment
arena.’" Corrado v. Warren-Trumbull County Pub. Library, 2006-Ohio-4661, ¶ 24
(11th Dist.). As the standard of review is de novo, we will review whether there are
any genuine issues of material fact, whether Appellees are entitled to judgment as a
matter of law and whether reasonable minds could reach a verdict in favor of
Appellant upon the claims set forth in the complaint.
{¶10} Vaco’s complaint in this case pled two causes of action - breach of
contract and, in the alternative, unjust enrichment. Since the trial court found there
was a contract, the trial court found the second cause of action to be moot. Semco
in its answer, as a well as a later filing, raised three counterclaims – negligence,
fraud, and breach of contract. “To establish a breach of contract claim, the plaintiff
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must prove by a preponderance of the evidence that a contract existed; that the
plaintiff completed performance; that the defendant failed to perform; and that the
plaintiff was damaged by the defendant's failure to perform.” Adams v. Disbennett,
2008-Ohio-5398, ¶ 14 (3d Dist.). In order to show that an oral contract exists, the
plaintiff must show that both parties consented to the terms of the contract, that there
was a “meeting of the minds” of both parties, and that the terms of the contract were
definite and certain. Daily Servs., LLC v. Transglobal, Inc., 2023-Ohio-2462, ¶ 46
(10th Dist.). “Accordingly, for a contract to be enforceable, there must be a
‘meeting of the minds’ as to the essential terms of the agreement, which means the
essential terms of the agreement must be ‘reasonably certain and clear’ and mutually
understood by the parties.” Id. at ¶ 47.
{¶11} Here, the parties agree that they intended to enter into a contract
whereby Vaco provided comptroller services to Semco and Semco agreed to pay a
fee of $120 per hour for such services. This agreement was an oral agreement and
nothing was put in writing. Vaco provided evidence that payment of the fees was
due when the invoice was sent. Semco provided evidence, through Shelby
Furman’s (“Furman”) deposition, that only the first three months’ worth of invoices
were owed, with the rest being owed when the job was completed. Furman was the
designated corporate representative of Semco and was the President of Semco Inc.
Furman testified that Vaco had previously provided the services of Nick Moreno
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(“Moreno”), who did not complete the tasks assigned. Furman claimed that after
Moreno did not work out, Vaco offered to supply a replacement comptroller and
asked Semco to give them another chance. According to Furman, he agreed to do
so.
The agreement that I [Furman] had with Derek Benseler [of Vaco] after the disaster of Nick Moreno was that we were going to pay three invoices to show that we had money, that we pay our bills. * * * And so I wanted to show that we were good for doing it, and we needed – and I wanted to make sure that it was acceptable, the work was acceptable to Rob Roll, our CPA at GBQ, and for the bank. And what happened was the first one was the bank found it unacceptable from Nick Moreno. So I was not going to pay until it was acceptable.
Furman Deposition at 30. Furman indicated that Semco gave Vaco a second chance
to fix the problems because Derek Benseler assured him that Glenn Smith (“Smith”)
could fix it. A review of the record shows that Semco did pay the first three invoices
for Smith’s work, but did not pay the remainder.1 This appears to put the payment
terms of the oral contract into issue. We note that the trial court claimed that Semco
had admitted that it owed the $120.00 per hour and that it had agreed to pay it when
invoiced. The trial court found this to be the case because of the admissions made
in the answer. However, a review of the complaint shows that it never alleged when
the amounts owed would be due. Thus, Semco did not admit that it would pay the
invoices upon receipt. This matter was one that the parties disagreed upon in their
1 This was shown by emails from Vaco to Semco acknowledging that it had received payment for three invoices.
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perception of the terms of the contract and is one of the issues of material fact to be
determined in this case. Viewing this evidence in a light most favorable to Semco,
this Court cannot say that a reasonable trier of fact could not find that the terms of
the contract did not require full payment of the remaining invoices, after the first
three were paid, until the contract was complete as was testified by Furman in his
deposition.
{¶12} Additionally, Vaco was required to show that it had completed its
performance under the contract in order to establish a claim for breach of contract.
See Adams, supra. Vaco presented evidence that it had provided the comptroller
services as set forth under the oral contract. Semco disputes this claim and raised a
counterclaim that Vaco breached its contract by not doing so. Furman testified in
his deposition that Smith was expected to complete the following:
To reconcile the bank accounts, reconcile the IRS, the 941s. He was supposed to do the bank statements. He was supposed to do the financial statements, and any other financial documents that we needed.
Furman Dep. At 44. Furman testified that Smith had not filed the quarterly tax
documents that were due on October 15, 2023, and that he did not complete the
financial statements for the bank. According to Furman, the work that was produced
by Smith, was not acceptable as the accountant indicated it was not correct. Furman
testified that he notified Vaco of the problems, but Vaco did not respond to his
concerns. Additionally, during the deposition, emails were presented showing that
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the proper paperwork was not filed with the IRS. The 941s were also not provided
to the bank. All of these were tasks that Furman testified Vaco’s agent was to have
finished in order for Vaco to have complied with their contractual duties.
{¶13} In response, Vaco presented the affidavit of Smith indicating that he
had completed the tasks assigned. This Court notes that this was a verbal contract.
As such the only evidence to show the terms of the contract is the testimony and
affidavits of the parties to the contract. As contradictory evidence exists regarding
whether Vaco completed its duties under the contract, there are genuine issues of
material fact as to whether a breach of contract occurred. Thus, summary judgment
is not appropriate as to Vaco’s breach of contract claim. The second assignment of
error is sustained.
{¶14} Semco claims in the third assignment of error that the trial court erred
by granting summary judgment to Vaco on Semco’s fraud claim.2 To establish a
claim of fraud, one must show the following: 1) a representation or concealment of
a fact, 2) which is material to the transaction, 3) falsely made, 4) with the intent of
misleading another into reliance, 5) leading to justifiable reliance, and 6)
proximately causing injury due to the reliance. Lucarell v. Nationwide Mut. Ins.
Co., 2018-Ohio-15, ¶ 61. “[A] party’s reliance is justifiable ‘if the representation
does not appear unreasonable on its face and if, under the circumstances, there is no
2 We note that Semco does not assign error as to the granting of summary judgment regarding the other counterclaims.
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apparent reason to doubt the veracity of the representation.’” Fertilizer Storage Co.,
LLC v. Heartland Bank, 2024-Ohio-4836, ¶ 15 (3d Dist.) quoting Trepp, LLC v.
Lighthouse Commercial Mtge., Inc., 2010-Ohio-1820, ¶ 21 (10th Dist.). However,
a failure to read a contract negates the justifiable reliance because one cannot
reasonably rely upon statements of the other party when they could have read the
contract. Id. “A person of ordinary mind cannot be heard to say that he was misled
into signing a paper which was different from what he intended when he could have
known the truth by merely looking when he signed.” ABM Farms, Inc. v. Woods,
81 Ohio St.3d 498, 503 (1993).
{¶15} In this case, there was no written contract. Furman testified in his
deposition that he informed Vaco that he only wanted a CPA. Furman also testified
that Benseler told him that Smith was a CPA and that Smith also told him he was a
CPA. However, Furman admitted during his testimony that prior to approving the
appointment of Smith, Vaco sent Furman Smith’s resume which showed that Smith
was not a CPA. When questioned about why he accepted the appointment of Smith
when he was not a CPA, Furman indicated that he had missed that fact on the
resume. Neither party disputes that Smith was not a CPA. Nor do they dispute that
Furman was given the resume of Smith which indicated Smith was not a CPA prior
to Furman accepting the appointment of Smith. Furman was given the information
that showed that Smith was not a CPA. As such he cannot now claim that he had
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justifiable reliance on what he was told merely because he did not adequately review
the resume. Without a showing of justifiable reliance, Semco cannot establish all
of the elements of a fraud claim. As such, Vaco was entitled to judgment as a matter
of law on the fraud claim. The third assignment of error is overruled.
Exclusion of Affidavit
{¶16} In the first assignment of error, Semco claims that the trial court erred
in excluding the affidavit of Furman from consideration when ruling on Vaco’s
motion for summary judgment. This Court has determined that the trial court erred
in granting summary judgment to Vaco on its breach of contract claim. As the
matter is being remanded for a trial, the issue of the admission of the affidavit is
moot. For this reason we will not address it at this time. App.R. 12(A)(1)(c).
Motion to Modify the Case Schedule
{¶17} In its final assignment of error, Semco claims that the trial court erred
by denying its motion to modify the case schedule. “As a general rule, a trial court
has the inherent authority to manage its own proceedings and control its own
docket.” State v. Orta, 2020-Ohio-4514, ¶ 22 (3d Dist.). An appellate court will
not interfere with the trial court’s exercise of this authority unless the decision is
“plainly erroneous and constitutes a clear abuse of discretion.” State ex rel. Buck v.
McCabe, 140 Ohio St. 535, 538 (1942). “To constitute an abuse of discretion with
regard to discovery rulings, the trial court's action(s) ‘must be so palpably
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and grossly violative of fact or logic that it evidences not the exercise of will but
the perversity of will, not the exercise of judgment but the defiance of judgment,
not the exercise of reason but instead passion or bias.’” America’s Floor Source,
LLC v. Homes, 2010-Ohio-6296, ¶ 47 (10th Dist.).
{¶18} In this case, the trial court originally issued its scheduling order on
September 11, 2024. The schedule set the witness disclosure deadline for
November 12, 2024, the discovery deadline for December 11, 2024, the dispositive
motion deadline for January 13, 2025, and the trial for May 20, 2025. On December
31, 2024, counsel for Semco filed a motion to withdraw. On January 2, 2025, Vaco
filed a motion to amend the scheduling order and to compel discovery. The motion
noted that Vaco had served discovery requests on Semco on October 30, 2024, and
given an extended time to answer until December 13, 2024. On December 9, 2024,
Vaco served a notice of deposition for Semco seeking dates to conduct the
deposition. As of the filing of the motion, Semco had not responded to Vaco’s
discovery requests. Vaco requested the trial court to extend the deadlines by 60
days, schedule a new trial date, and to order Semco to comply with the discovery
requests. The trial court granted the motion on January 6, 2025, and ordered Semco
to respond to all outstanding discovery by January 24, 2025.
{¶19} On January 24, 2025, the trial court held a pre-trial conference, which
Semco failed to attend. The trial court found that Semco had yet to find new counsel
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and had not responded to discovery as ordered. The trial court ordered Semco to
obtain new counsel and to comply with discovery demands or be sanctioned. On
February 27, 2025, the trial court again set new deadlines with the discovery
deadline being set for March 5, 2205, the deadline for depositions extended to
March 31, 2025, and the dispositive motion deadline extended to April 7, 2025.
This was done to accommodate the new counsel retained by Semco. On March 28,
2025, the new counsel for Semco filed a motion to again modify the case schedule,
adjusting the deadlines by approximately 3 additional months. On April 16, 2025,
the trial court denied the motion to modify the schedule for a third time.
{¶20} Semco argues that the trial court erred in denying the motion because
there were extenuating circumstances in that Semco’s original counsel failed to
timely respond to discovery requests and then withdrew shortly after the deadline
passed. The record shows that the trial court did take this into consideration and
continued the schedule two times. The motion for the extension was not filed until
right before the third deadline for discovery. In ruling on the motion to modify the
case schedule, the trial court noted that Vaco had repeatedly complied with the
deadlines while Semco had not done so. The trial court also noted the previous
extensions that have been granted and that counsel for Semco had agreed to the
deadlines in effect at that time. The trial court determined that granting the request
would be prejudicial to Vaco and then denied the motion. All of the reasons given
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by the trial court were supported by the record. As such, this court does not find
that the trial court abused its discretion in denying the motion to modify the case
schedule for a third time. The fourth assignment of error is overruled.
{¶21} Having found no error prejudicial to the appellant in the particulars
assigned and argued in the third and fourth assignments of error, the judgment is
affirmed as to those issues. Having found prejudicial error to the appellant in the
particulars assigned and argued in the second assignment of error, the judgment is
reversed as to that issue and the matter is remanded. The resolution of the second
assignment of error renders the first assignment of error moot and it will not be
addressed at this time.
Judgment Affirmed in Part, Reversed in Part, and Cause Remanded
ZIMMERMAN, P.J. and MILLER, J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, it is the judgment and
order of this Court that the judgment of the trial court is affirmed in part and reversed
in part with costs assessed equally between Appellant and Appellee for which
judgment is hereby rendered. The cause is hereby remanded to the trial court for
further proceedings and for execution of the judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
John R. Willamowski, Judge
William R. Zimmerman, Judge
Mark C. Miller, Judge
DATED: /hls
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