[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.
