[Cite as S & B Installations v. B & L Contractors, Inc., 2004-Ohio-4255.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY S & B INSTALLATIONS, Plaintiff, vs. B & L CONTRACTORS, INC., Defendant, and Pennsylvania National Mutual Casualty Insurance Company, Defendant-Appellant, : : : Gulf Insurance Company, : : Defendant-Appellee. : ________________________________________________________________ APPEARANCES: and Robert M. Conway, Gary A. Wilson, and Salil P. Patel, Philadelphia, Pennsylvania, for Appellant. Stephen J. Brewer and Timothy E. Rogus, Cincinnati, Ohio, for Appellee. ________________________________________________________________ Harsha, J. {¶1} Company Pennsylvania (Penn National appeals Mutual the Casualty court's Insurance summary : : : : : : : : : : : : : : :
Case No. 04CA7
DECISION AND JUDGMENT ENTRY
Filed 8/5/04 Journalized 8/9/04
National)
trial
judgment in Gulf Insurance Company's (Gulf) favor in this action by a subcontractor to obtain payment under a construction bond. Penn National contends that genuine issues of material fact
Lawrence App. No. 04CA7 remain regarding whether Gulf's payment bond is valid
2 and
enforceable. motion, payment which bond
However, Gulf filed a properly supported Civ.R. 56 taken on its face shows that bond. Penn National's Penn
replaced
Gulf's
payment
Because
National failed to respond with proper summary judgment evidence to establish that a genuine issue of material fact remained for trial, the court correctly entered summary judgment in Gulf's favor. {¶2} This case involves a dispute between two construction In 2001, Gulf issued a $1.1 million payment
bonding companies.1
bond on behalf of B&L Contractors, Inc. for the Fairland East Elementary School construction project. Subsequently, Penn
National issued a $849,000 payment bond on behalf of B&L for the same project. Gulf contends that the Penn National bond
replaced Gulf's bond, making it no longer available for claims arising out of the construction project. Thus, the ultimate
issue involves which bond(s) the subcontractor may look to for satisfaction of the amounts due it. {¶3} filed a In 2003, S&B Installations, a project subcontractor, complaint against B&L for breach of contract and
asserted bond payment claims against Penn National and Gulf. Penn National filed a cross-claim against Gulf, asserting that
1
A companion case involving the same parties, Lawrence App. No. 04CA6 has been dismissed.
Lawrence App. No. 04CA7
3
Gulf's bond controlled or alternatively, that Gulf is jointly and severally liable. Penn National. {¶4} Gulf subsequently filed a motion for summary judgment. Gulf likewise filed a cross-claim against
It argued that no genuine issues of material fact existed to show that it was liable under the bond. In support of its Massey, an
motion, Gulf referred to Jack Massey's affidavit.
employee of the Putnam Agency, Inc., issued the bonds on behalf of both Gulf and Penn National. Massey stated: (1) in August of
2001, he prepared the Gulf bond to submit along with B&L's bid for the project; (2) before the District accepted B&L's bid, B&L requested him to find another bond with more favorable terms; (3) during August and September of 2001, Massey met with Penn National representatives to discuss moving the B&L account from Gulf moved to Penn B&L National; account (4) from during Gulf September to Penn of 2001, Putnam Penn
the
National
and
National issued several final bonds on B&L's behalf; (5) "[t]he Penn National Bond was provided to Janet Griffiths of B&L, for signature and delivery to the Fairland Local School District to replace the Gulf Bond"; and (6) "I am aware that, by letter dated December 10, 2001, the replacement of the Gulf Bond with the Penn National Bond was confirmed by Paul E. Wood, Assistant Project Manager for BBL Construction Services, the construction manager for the Obligees."
Lawrence App. No. 04CA7 {¶5}
4
In response, appellant argued that genuine issues of It argued that it never authorized Putnam to Appellant attached a document,
fact remained.
issue the Penn National bond.
which it described as a "letter", that Penn National purportedly sent to Massey in October of 2002. The copy of the "letter" in Furthermore, no one
the record has no letterhead or signature.
from Penn National has incorporated or authenticated the letter via an affidavit. The document does state that Penn National
learned that Putnam "approved bonds for accounts where you did not have the authority or a current line of credit to do so," including the $849,000 bond. {¶6} The trial court subsequently granted appellee's
summary judgment motion. {¶7} Appellant timely appealed the trial court’s judgment “The trial court genuine judgment issues to of
and raises the following assignment of error: erred in determining fact that there were no
material
thereby
granting
summary
Gulf
Insurance Company against Pennsylvania National Mutual Casualty Insurance Company.” {¶8} that the In its sole assignment of error, appellant contends trial court improperly entered summary judgment in
appellee's favor because genuine issues of material fact remain regarding whether the Penn National bond was intended to replace the Gulf bond. Relying on the October 4, 2002 letter to Massey,
Lawrence App. No. 04CA7
5
Penn National contends that it did not approve or authorize the $849,000 bond. not have It additionally complains that the court should appellee of argues summary Massey's that the judgment when most of its
granted
evidence Appellant
consisted further
"self-serving trial court
affidavit." should have
allowed the parties to engage in further discovery before ruling on appellee's summary judgment motion. Appellant particularly
disputes Massey's affidavit in which he states that the Penn National bond replaced the Gulf bond. It claims that it should
be entitled to depose and cross-examine Massey. {¶9} Appellee argues that appellant relies upon improper
Civ.R. 56 evidence when claiming that genuine issues of material fact remain. Specifically, appellee contends that appellant's
reference to the October 4, 2002 letter is not proper Civ.R. 56 evidence that a court can consider. Appellee further asserts
that the proper Civ.R. 56 evidence before the court demonstrates that the Penn National bond replaced the Gulf bond. Appellee
notes that Massey stated in his affidavit that the Gulf bond was a bid/contract bond that was replaced before the District
accepted the bid. {¶10} We conduct a de novo review of a trial court's
summary judgment decision.
See, e.g., Grafton v. Ohio Edison
Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241; Lexford Prop. Mgmt., L .L.C. v. Lexford Prop. Mgmt., Inc. (2001), 147
Lawrence App. No. 04CA7 Ohio App.3d 312, 316, 770 N.E.2d 603.
6 Under Civ.R. 56, summary
judgment is proper when: (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 is made, that conclusion is adverse to that party. {¶11} solely on See, e.g., Grafton.
A court may not sustain a summary judgment motion the moving party's conclusory assertion that the
nonmoving party has no evidence to prove its case. "party seeking summary judgment, on the
Instead, the that the
ground
nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis of the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims." Dresher v. Burt The moving
(1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264.
party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. 674 N.E.2d 1164. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, If the moving party satisfies this initial
burden, the nonmoving party then has a reciprocal burden under
Lawrence App. No. 04CA7
7
Civ.R. 56(E) to set forth facts showing that there is a genuine issue for trial. {¶12} met its Dresher, 75 Ohio St.3d at 293.
Here, our review of the record shows that appellee initial of in a burden under fact. stated Civ.R. 56 to demonstrate the
absence affidavit
material which he
Appellee that the
presented Penn
Massey's bond
National
replaced the Gulf bond. showing the existence
Appellant did not respond with evidence of a genuine issue of material fact.
Appellant's reference to the October 4, 2002 "letter" does not establish the existence of a genuine issue of material fact
concerning the existence of Penn National's bond or whether the Penn National bond replaced the Gulf bond. {¶13} In its brief, appellee objects for the first time to
this letter, claiming that it is not proper Civ.R. 56 evidence. Civ.R. 56 limits the evidence that a court may consider when ruling on a summary judgment motion. court may in consider the affidavits, That rule specifies that a transcripts answers of to The
depositions,
hearings
proceedings,
written
admissions,
interrogatories, written stipulations, and the pleadings.
court may consider other types of evidence only if incorporated by reference in a properly framed affidavit. Bank v. Legard, Lorain App. No. that way Huntington Natl. 2004-Ohio-323 been sworn, no
03CA8285, have of not
(citations certified,
omitted). or
"Documents by
authenticated
affidavit
'have
Lawrence App. No. 04CA7 evidentiary value[.]'"
8 Id. at ¶10 (quoting Lance Acceptance
Corp. v. Claudio, Lorain App. No. 02CA8201, 2003-Ohio-3503, at ¶ 15). However, "'if the opposing party fails the to object to
improperly
introduced
evidentiary
materials,
trial
court
may, in its sound discretion, consider those materials in ruling on the summary judgment motion.'" Id. (quoting Christe v. GMS
Mgt. Co., Inc. (1997), 124 Ohio App.3d 84, 90, 705 N.E.2d 691); see, also Rodger v. McDonald's Restaurants of Ohio, Inc.
(1982), 8 Ohio App.3d 256, 258, fn. 7, 456 N.E.2d 1262. {¶14} Because the "letter" clearly does not satisfy the
requirements of the rule, we presume the court did not consider it. In fact, given the lack of a letterhead and signature, and
incorporation by an affidavit, it would have been an abuse of discretion for the court to do so. Moreover, even if we
consider the "letter", it doesn't purport to revoke the bond or declare it invalid, nor did it notify B&L of any such intent. Accordingly, fact. {¶15} Appellant further complains that appellee did not it does not create a genuine issue of material
meet its burden because Massey's affidavit was not subject to cross-examination. Affidavits have long been considered proper
Civ.R. 56 evidence, even though the affiants are not subject to cross-examination. In Schroeder v. Tennill (Aug. 27, 1990),
Stark App. No. CA-8123, at fn.2, the court rejected a similar
Lawrence App. No. 04CA7 argument: not
9
"In its brief, [appellee] claims, 'The affidavit is to cross-examination, nor have depositions been
subject
taken. * * * ' The appellee further claims that the affidavit is a self-serving declaration.' is the case.' 'We do not know for sure if that
Appellee misses the import of Civ.R. 56 and For
failed to avail of the option granted in Civ.R. 56(F). purposes of summary judgment, a self-serving
affidavit,
unchallenged, justifies a finding that reasonable minds can come to the conclusion that the claim is true." {¶16} Faced with Massey's affidavit, appellant had a burden
to produce admissible Civ.R. 56 evidence showing that a genuine issue of material fact remained. It did not, and, thus, the
trial court appropriately entered summary judgment in appellee's favor. {¶17} Furthermore, appellant's argument that the court
should have allowed it time to depose Massey is not persuasive. Appellant error. availed did not raise this contention as an assignment of
In all likelihood this is because appellant could have itself of Civ.R. 56(F), but did not. Civ.R. 56(F)
provides:
“Should it appear from the affidavits of a party
opposing the motion for summary judgment that the party cannot for sufficient to reasons the stated present by affidavit the facts may
essential
justify
party's
opposition,
court
refuse the application for judgment or may order a continuance
Lawrence App. No. 04CA7
10
to permit affidavits to be obtained or discovery to be had or may make such other order as is just.” Thus, the rule requires
a party seeking a continuance to provide the trial court with sufficient reasons why it "'cannot present by affidavit facts sufficient to justify its opposition.'" Denham v. New Carlisle
(2000), 138 Ohio App.3d 439, 443, 741 N.E.2d 587 (quoting Gates Mills Invest. Co. v. Pepper Pike [1978], 59 Ohio App.2d 155, 169, 392 N.E.2d 1316). Here, appellant did not seek a
continuance under the rule and cannot avail itself of the rule's benefit for the first time on appeal. {¶18} trial Last, appellant asserts that we should reverse the judgment based on Judge McCown's decision in
court's
Stonecreek Interior Systems, Inc. v. Gulf Ins. Co., Lawrence C.P. No. 03-OC-387. the same dispute According to appellant, Stonecreek involves between Penn National and Gulf, and Judge
McCown ruled that both Penn National and Gulf were liable under the bonds. record in Not only is this judgment entry not part of the this case but we have no way of discerning what
evidence was before Judge McCown and why he ruled contrary to the trial court's judgment in this case. Based upon the proper
evidence included in the trial court record in this case, we conclude that the trial court properly entered summary judgment in appellee's favor.
Lawrence App. No. 04CA7 {¶19}
11
Consequently, we overrule appellant's assignment of
error and affirm the trial court's judgment. JUDGMENT AFFIRMED.
JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED Appellee recover of Appellant costs herein taxed. The appeal. Court finds there were reasonable grounds and that
for
this
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution. Any stay previously granted by this terminated as of the date of this entry. Court is hereby
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Kline, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY:
_______________________ William H. Harsha, Judge
NOTICE TO COUNSEL
Lawrence App. No. 04CA7
12
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
