[Cite as Silberhorn v. Flemco, L.L.C., 2020-Ohio-913.]


                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

PATRICIA SILBERHORN,                                     :

                 Plaintiff-Appellee,                     :
                                                               No. 108346
                 v.                                      :

FLEMCO, L.L.C.,                                          :

                 Defendant-Appellant.                    :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: March 12, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-17-879598


                                            Appearances:

                 Wickens Herzer Panza, Matthew N. Danese, and Philip J.
                 Truax, for appellee.

                 Oscar Trivers, for appellant.


MARY J. BOYLE, P.J.:

                   Defendant-appellant, Flemco, L.L.C., appeals the trial court’s grant of

summary judgment to plaintiff-appellee, Patricia Silberhorn. Flemco raises one

assignment of error for our review:
      The trial court erred in granting Plaintiff’s motion for summary
      judgment.

              Finding no merit to Flemco’s assignment of error, we affirm.

      I.     Procedural History and Factual Background

              On April 28, 2017, Silberhorn filed a complaint for declaratory

judgment and money damages against Flemco. Her complaint contained one count

for action to quiet title/declaratory judgment and one count for slander of title. In

the complaint, Silberhorn stated that she owned the property located at 1339 Buhrer

Avenue in Cleveland, Ohio. She alleged that on August 3, 2015, she, Flemco, and a

third party, A Christmas Story House Foundation, Inc. (“the Foundation”), entered

into a contract (the “Work Agreement”), under which Flemco would perform

construction work on the property, Silberhorn would give Flemco access to the

property, and the Foundation would pay Flemco for the work. Silberhorn alleged

that Flemco failed to perform its obligations under the contract and that the

Foundation terminated the contract on June 13, 2016. Silberhorn also alleged that

Flemco filed and recorded a mechanic’s lien with the Cuyahoga County Fiscal Officer

in August 2016, stating that Silberhorn owed Flemco $5,471.50. Silberhorn alleged

that Flemco failed to serve her with the mechanic’s lien. Attached to Silberhorn’s

complaint was the Work Agreement and the recorded affidavit for mechanic’s lien.

              Flemco filed an answer to the complaint and set forth a counterclaim

against Silberhorn for breach of contract. Silberhorn answered the counterclaim.
Silberhorn served discovery requests on Flemco, including requests for admissions,

which Flemco did not answer.

              Silberhorn subsequently filed a motion for summary judgment,

seeking a declaration that the mechanic’s lien was invalid on her claims for quiet

title, damages on her claim for slander of title, and judgment in her favor on

Flemco’s counterclaim for breach of contract. Silberhorn supported her motion with

her affidavit where she stated that she was not served with the mechanic’s lien.

Silberhorn also supported her motion with Flemco’s unanswered requests for

admissions, deemed to be admitted, which included admissions that the mechanic’s

lien “constitutes a slanderous cloud upon the title” on Silberhorn’s property, was

false, and was published “with a conscious disregard for Silberhorn’s rights.”

Flemco opposed her motion and attached an affidavit of vice president of Flemco,

Gregory Fleming, swearing that the statements in the opposition were true.

              In June 2018, the magistrate granted Silberhorn’s motion for

summary judgment in a written opinion, which stated in relevant part:

      Nowhere in [Flemco’s] filings does it allege or provide evidence of the
      compliance with the statutory service requirements (attempts to serve
      the property owner via the Sheriff or certified mail) which are necessary
      to create a valid mechanics lien.

      While construing the evidence most strongly in favor of [Flemco], the
      magistrate finds that there are no genuine issues of material fact, that
      a reasonable trier of fact could only conclude in favor of [Silberhorn],
      and that [Silberhorn] is entitled to judgment as a matter of law.

The magistrate declared that the mechanic’s lien was “invalid and defective,” a

“cloud upon the title to the property” at issue, and “null and void.” It granted
Silberhorn quiet title as to the mechanic’s lien and granted Silberhorn’s claim for

slander of title. The magistrate also concluded that Flemco’s counterclaim for

breach of contract was without merit and granted summary judgment to Silberhorn

on that claim.

                 In July 2018, Flemco filed objections to the magistrate’s decision. In

February 2019, the trial court by journal entry overruled Flemco’s objections and

adopted the magistrate’s decision, granting summary judgment to Silberhorn on her

claims against Flemco as well as on Flemco’s counterclaim for breach of contract.

                 It is from this judgment that Flemco now appeals.

      II.    Law and Analysis

                 In its sole assignment of error Flemco argues the trial court erred

when it granted Silberhorn summary judgment.

                 We review a trial court’s grant of a motion for summary judgment de

novo. Citizens Bank, N.A. v. Richer, 8th Dist. Cuyahoga No. 107744, 2019-Ohio-

2740, ¶ 28. For de novo review, we independently “examine the evidence to

determine if as a matter of law no genuine issues exist for trial.” Brewer v. Cleveland

Bd. of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997). We

therefore review the trial court’s order without giving any deference to the trial

court. Citizens Bank at ¶ 28.

                 Pursuant to Civ.R. 56(C), summary judgment is proper where (1)

“there is no genuine issue as to any material fact”; (2) “the moving party is entitled

to judgment as a matter of law”; and (3) “reasonable minds can come to but one
conclusion, and that conclusion is adverse to the party against whom the motion for

summary judgment is made.” Harless v. Willis Day Warehousing Co., 54 Ohio

St.2d 64, 66, 375 N.E.2d 46 (1978). Summary judgment should be awarded only

after all doubts are resolved in favor of the nonmoving party and it is found that

“reasonable minds can reach only an adverse conclusion” against the nonmoving

party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138

(1992).

               The moving party has the burden to show that no genuine issue of

material fact exists. Citizens Bank at ¶ 30. After the moving party has met his or

her burden, the burden shifts to the nonmoving party to put forth evidence “on any

issue for which that party bears the burden of production at trial.” Robinson v. J.C.

Penney Co., 8th Dist. Cuyahoga Nos. 62389 and 63062, 1993 Ohio App. LEXIS

2633, 14 (May 20, 1993). If the nonmoving party “fails to establish the existence of

an element essential to that party’s case and on which that party will bear the burden

of proof at trial,” summary judgment in favor of the moving party is proper.

Brandon/Wiant Co. v. Teamor, 125 Ohio App.3d 442, 446, 708 N.E.2d 1024 (8th

Dist.1998).

      A. Quiet Title and Declaratory Judgment

               Turning first to Silberhorn’s claim for declaratory judgment and quiet

title, “[a] cloud on a title is a defect in title ‘that has a tendency even in the slight

degree, to cast doubt upon the owner’s title, and to stand in the way of a full and free

exercise of his [or her] ownership.’” Cuspide Properties, Ltd. v. Earl Mechanical
Servs., 6th Dist. Lucas No. L-14-1253, 2015-Ohio-5019, ¶ 27, quoting McClure v.

Fischer Attached Homes, 145 Ohio Misc.2d 38, 2007-Ohio-7259, 882 N.E.2d 61

(C.P.). An invalid lien clouds a property’s title because it “creates the appearance

that there is an encumbrance on one’s land where one does not exist.” Cuspide

Properties at ¶ 27.

              A mechanic’s lien can be entered against an owner’s interest in real

property if the owner or the owner’s agent fails to pay for work done to improve the

property. Cuspide Properties at ¶ 28, citing R.C. 1311.02. R.C. 1311.07 requires that

a copy of the recorded affidavit for a mechanic’s lien be served on the owner of the

improved property within 30 days of filing the lien. Service must be made on an

individual owner via sheriff or any delivery method that includes a written receipt.

R.C. 1311.19(A). A copy served via another method is considered served only if the

person served acknowledges receipt or is proved to have actually received it. R.C.

1311.19(C). Failure to comply with the statutory service requirements renders a

mechanic’s lien invalid and unenforceable. A & J Plumbing Inc. v. Huntington Natl.

Bank, 11th Dist. Lake No. 2014-L-023, 2014-Ohio-5707, ¶ 15.

              In her affidavit attached to her motion for summary judgment,

Silberhorn states that Flemco did not serve her with a copy of the mechanic’s lien.

In its opposition, which is sworn to be true, Flemco states that it served Silberhorn

with a copy of the mechanic’s lien via regular U.S. mail. While the parties may

dispute whether Silberhorn was served at all, there is no genuine dispute of material

fact that Flemco did not serve Silberhorn via one of the methods required by R.C.
1311.19(A).   We therefore affirm the grant of summary judgment in favor of

Silberhorn on her claim for declaratory judgment and quiet title, declaring that the

mechanic’s lien is invalid and defective, a cloud upon the title to Silberhorn’s

property, and null and void. As a matter of law reasonable minds can come to but

one conclusion and that conclusion is adverse to Flemco.

      B. Slander of Title

               Next, Silberhorn brought a claim against Flemco for slander of title.

Slander of title is a tort action “against one who falsely and maliciously defames title

to property and causes some special pecuniary damages or loss.” Acme Constr. Co.

v. Continental Natl. Indemn. Co., 8th Dist. Cuyahoga No. 81402, 2003-Ohio-434,

¶ 46. To succeed on a claim for slander of title, the claimant must prove the

following: “(1) there was a publication of a slanderous statement disparaging

claimant’s title; (2) the statement was false; (3) the statement was made with malice

or made with reckless disregard of its falsity; and (4) the statement caused actual or

special damages.” Green v. Lemarr, 139 Ohio App.3d 414, 430-431, 744 N.E.2d 212

(2d Dist.2000). Attorney fees incurred in litigation to quiet title satisfy the damages

element for slander of title. Id. at 435.

               By failing to respond to Silberhorn’s requests for admissions, Flemco

admitted that the mechanic’s lien “constitutes a slanderous cloud upon the title” on

Silberhorn’s property, was false, and was published “with a conscious disregard for

Silberhorn’s rights.” In Ohio, failure to answer requests for admissions deem the

matter admitted, and such admissions may support a motion for summary
judgment. Jade Sterling Steel Co. v. Stacey, 8th Dist. Cuyahoga No. 88283, 2007-

Ohio-532, ¶ 11. In her affidavit supporting her motion for summary judgment,

Silberhorn stated that she incurred attorney fees in bringing the action for quiet title.

Flemco sets forth no facts to the contrary. We therefore affirm the grant of summary

judgment in favor of Silberhorn on her claim for slander of title.

      C. Breach of Contract

               Lastly, Flemco brought a claim against Silberhorn for breach of

contract. “A cause of action for breach of contract requires the claimant to establish

the existence of a contract, the failure without legal excuse of the other party to

perform when performance is due, and damages or loss resulting from the breach.”

Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15, 97 N.E.3d

458, ¶ 41. “In addition to a contract’s express terms, every contract imposes an

implied duty of good faith and fair dealing in its performance and enforcement.” Id.

at ¶ 42. Courts generally construe contractual language as a matter of law. Arnott v.

Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 14. “When

construing a contract, the court must ascertain and give effect to the intent of the

parties, which is presumed to be reflected in the language used therein.” Kertes

Ents., LLC v. Sanders, 8th Dist. Cuyahoga No. 107770, 2019-Ohio-2237, ¶ 18.

               Flemco cannot succeed in its claim for breach of contract against

Silberhorn for failure to pay work completed pursuant to the Work Agreement

because Silberhorn had no duty to pay Flemco. Under the three-party Work

Agreement, Flemco would perform construction work, Silberhorn would provide
Flemco access to the property, and the Foundation (not Silberhorn) would pay

Flemco for the work performed.

              We therefore find that no genuine issues of material fact exist for trial,

reasonable minds could come to but one conclusion in favor of Silberhorn, and

Silberhorn is entitled to judgment as a matter of law on all three claims.

Accordingly, we overrule Flemco’s assignment of error.

              Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



MARY J. BOYLE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR
