[Cite as Hornacek v. Madenfort, 2019-Ohio-5180.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



CHRIS HORNACEK                                     :   JUDGES:
                                                   :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                        :   Hon. Craig R. Baldwin, J.
                                                   :   Hon. Earle E. Wise, Jr., J.
-vs-                                               :
                                                   :
MITCHELL MADENFORT, ET AL.                         :   Case No. 2019CA00058
                                                   :
        Defendants-Appellees                       :   OPINION




CHARACTER OF PROCEEDING:                               Appeal from the Court of Common
                                                       Pleas, Case No. 2018CV00277




JUDGMENT:                                              Affirmed




DATE OF JUDGMENT:                                      December 9, 2019




APPEARANCES:

For Plaintiff-Appellant                                For Defendants-Appellees

DARREN W. DEHAVEN                                      RONALD K. STARKEY
3500 Massillon Road                                    ADAM M. RUNKLE
Suite 410                                              638 West Maple Street
Uniontown, OH 44685                                    Hartville, OH 44632
Stark County, Case No. 2019CA00058                                                     2

Wise, Earle, J.

      {¶ 1} Plaintiff-Appellant, Chris Hornacek, appeals the March 18, 2019 judgment

entry of the Court of Common Pleas of Stark County, Ohio, granting summary judgment

to Defendant-Appellee, Madenfort Excavating, Ltd.

                        FACTS AND PROCEDURAL HISTORY

      {¶ 2} On or about August 3, 2017, the parties verbally agreed that Mitchell

Madenfort and appellee would sell an excavator to appellant for $40,000. The excavator

was to be delivered in November or December, 2017. At some point, the excavator was

sold to a third party, Ohio CAT.

      {¶ 3} On February 22, 2016, appellant filed a complaint against Mr. Madenfort

and appellee, claiming breach of agreement and promissory estoppel. The case was

referred to mediation which was unsuccessful.

      {¶ 4} On February 8, 2019, Mr. Madenfort and appellee filed a motion for

summary judgment, claiming statute of frauds (R.C. 1302.04), neither party fell under the

"merchant" exception of the statute, and promissory estoppel was inapplicable. In an

opposition memorandum filed February 22, 2019, appellant removed Mr. Madenfort as a

party as well as the claim for promissory estoppel. By judgment entry filed March 18,

2019, the trial court granted summary judgment to appellee.

      {¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶ 6} "THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN

FAVOR OF DEFENDANT MADENFORT EXCAVATING, LTD."
Stark County, Case No. 2019CA00058                                                    3

                                            I

      {¶ 7} In his sole assignment of error, appellant claims the trial court erred in

granting summary judgment to appellee. We disagree.

      {¶ 8} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):



             Civ.R. 56(C) provides that before summary judgment may be

      granted, it must be determined that (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 nonmoving party, that conclusion is adverse to the party

      against whom the motion for summary judgment is made. State ex. rel.

      Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

      citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d

      466, 472, 364 N.E.2d 267, 274.



      {¶ 9} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987).

      {¶ 10} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56, 2015-Ohio-4444, ¶ 13:
Stark County, Case No. 2019CA00058                                                        4



            It is well established the party seeking summary judgment bears the

     burden of demonstrating that no issues of material fact exist for trial.

     Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91

     L.Ed.2d 265 (1986).      The standard for granting summary judgment is

     delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a party

     seeking summary judgment, on the ground that the nonmoving party cannot

     prove its case, bears the initial burden of informing the trial court of the basis

     for 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. The moving party cannot discharge its

     initial burden under Civ.R. 56 simply by making a conclusory assertion the

     nonmoving party has no evidence to prove its case. Rather, the moving

     party must be able to specifically point to some evidence of the type listed

     in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

     no evidence to support the nonmoving party's claims. If the moving party

     fails to satisfy its initial burden, the motion for summary judgment must be

     denied. However, if the moving party has satisfied its initial burden, the

     nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

     set forth specific facts showing there is a genuine issue for trial and, if the

     nonmovant does not so respond, summary judgment, if appropriate, shall

     be entered against the nonmoving party."            The record on summary

     judgment must be viewed in the light most favorable to the opposing party.

     Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150.
Stark County, Case No. 2019CA00058                                                     5



       {¶ 11} In his complaint filed February 5, 2018, appellant claimed Mr. Madenfort

and appellee would sell him an excavator for $40,000. Delivery was to be in November

or December 2017, depending on when appellee's new excavator was going to be

delivered. The agreement between the parties was not reduced to writing. The excavator

was subsequently sold to a third party. Appellant alleged claims of breach of agreement

and promissory estoppel.

       {¶ 12} In their motion for summary judgment, Mr. Madenfort and appellee argued

the oral agreement was unenforceable under the statute of frauds [R.C. 1302.04(A)],

neither party fell under the "merchant" exception of the statute [(R.C. 1302.04(B) and

1302.01(A)(5)], and promissory estoppel was inapplicable.              In his opposition

memorandum, appellant removed Mr. Madenfort as a party as well as the claim for

promissory estoppel. Appellant argued appellee, as an excavation company, was a

merchant "who deals in goods of the kind" (excavators), and held itself "out as having

knowledge or skills peculiar to the practices or goods involved in the transaction."

       {¶ 13} R.C. 1302.04(A) states the following:



              Except as otherwise provided in this section a contract for the sale

       of goods for the price of five hundred dollars or more is not enforceable by

       way of action or defense unless there is some writing sufficient to indicate

       that a contract for sale has been made between the parties and signed by

       the party against whom enforcement is sought or by his authorized agent or

       broker.
Stark County, Case No. 2019CA00058                                                         6

      {¶ 14} R.C. 1302.04(B) states:



             Between merchants if within a reasonable time a writing in

      confirmation of the contract and sufficient against the sender is received

      and the party receiving it has reason to know its contents, it satisfies the

      requirements of division (A) of this section against such party unless written

      notice of objection to its contents is given within ten days after it is received.



      {¶ 15} R.C. 1302.01(A)(5) defines "merchant" as:



             [A] person who deals in goods of the kind or otherwise by the

      person's occupation holds the person out as having knowledge or skill

      peculiar to the practices or goods involved in the transaction or to whom

      such knowledge or skill may be attributed by the person's employment of

      an agent or broker or other intermediary who by the agent's, broker's, or

      other intermediary's occupation holds the person out as having such

      knowledge or skill.



      {¶ 16} In his affidavit attached to the February 8, 2019 motion for summary

judgment, Mr. Madenfort averred at ¶ 8: "Madenfort Excavating is not now, nor has it ever

been, in the business of buying and selling excavators." Mr. Madenfort averred the same

for himself, individually, at ¶ 7. In response to appellant's admissions request attached

to the February 22, 2019 memorandum in opposition, Mr. Madenfort admitted at Nos. 11
Stark County, Case No. 2019CA00058                                                       7

and 12 that "Madenfort Excavating uses excavators" and "Madenfort Excavating uses

excavators and that Mitch Madenfort knows how to operate an excavator."

      {¶ 17} In response to appellee's admissions request attached to the motion for

summary judgment at No. 9, appellant admitted his "primary business is not buying or

selling excavators." In his affidavit attached to the memorandum in opposition, appellant

averred at ¶ 4 and 5: "Madenfort Excavating, Ltd., is an excavation company that holds

itself out to the public as having knowledge or skills in excavating and using excavators"

and "I own and operate a landscaping business [that] regularly utilizes an excavator."

      {¶ 18} In its March 18, 2019 judgment entry granting summary judgment to

appellee, the trial court determined the oral agreement did not comply with the statute of

frauds ($40,000), and the "merchant" exception did not apply as "[n]either of the parties

in this matter are in the primary business of buying and/or selling excavators." The trial

court found appellant operates a landscaping business that uses excavators and appellee

is an excavating company that uses excavators. In support of its decision, the trial court

cited the case of Advanced Dirt Works v. C.L. Bridges Equipment Co., 2d Dist.

Champaign No. 97-CA-11, 1998 WL 151102 (Apr. 3, 1998). In Advanced at *3, our

colleagues from the Second District found an excavating contractor was not a "merchant"

as defined in R.C. 1302.01(A)(5) in a dispute involving a backhoe. Appellant correctly

points out this case involved R.C. 1302.44(B), a good faith purchaser of goods, not the

statute of frauds. R.C. 1302.44(B) refers to a "merchant who deals in goods of that kind."

It does not consider the person's knowledge or skill as set forth in R.C. 1302.01(A)(5)

cited above.

      {¶ 19} Nevertheless, in reviewing the affidavits and admissions filed in this case,

we concur with the trial court's analysis that the "merchant" exception does not apply sub
Stark County, Case No. 2019CA00058                                                        8

judice. Neither party "deals" in excavators. Each party uses excavators to provide

services, appellee/landscaping and appellant/excavating.       Although their respective

occupations providing these services holds each party "out as having knowledge or skill

peculiar to the practices or goods involved in the transaction," we find said knowledge

and skill pertains to the operation and use of excavators, not the selling of excavators.

Each party is merely a consumer of excavators. We find R.C. 1302.04(B) applies "to a

merchant in his mercantile capacity."     1961 Official Comment, UCC 2-104(2) [R.C.

1302.01]. The "mercantile capacity" of each party in this case is to provide a service.
Stark County, Case No. 2019CA00058                                                      9

      {¶ 20} Upon review, we find the trial court did not err in granting summary judgment

to appellee.

By Wise, Earle, J.

Baldwin, J. concurs.

Hoffman, P.J. dissents.




EEW/db
Stark County, Case No. 2019CA00058                                                         10

Hoffman, P.J., dissenting

       {¶21} I respectfully dissent from the majority opinion. I do agree with the majority

neither party “deals” in excavators in the sense neither party is in the primary business of

buying and/or selling excavators.      As such neither party qualifies for the merchant

exception to the statute of fraud under the first part of the definition of a “merchant” found

in R.C. 1302.01(A)(5).

       {¶22} But, unlike the majority, I find, when considering the evidence in a light most

favorable to Appellant as required as Civ.R. 56, reasonable minds could disagree whether

both of the parties are merchants under the second part of the statutory definition of

“merchant.” The fact Appellee runs an excavation business and necessarily needs to

purchase and possibly sell or trade-in excavators to transact its business, reasonably

supports a finding Appellee holds itself out to the public as having knowledge or skills

peculiar to excavating. Such knowledge is further demonstrated by Appellee’s willingness

to purchase a new excavator at a certain price and to determine what constitutes a fair

price for the used excavator Appellee agreed to sell to Appellant.

       {¶23} In a similar fashion, Appellant’s use of an excavator in his landscape

business and his assessment of the fair market value of the used excavator he intended

to purchase from Appellee, would reasonably support a finding Appellant holds himself

out as having knowledge or skill peculiar to the excavation practice or good(s) involved.

       {¶24} I find the parties knowledge or skill goes beyond the mere operation and

use of excavators, and, in fact, extends to the selling of excavators as evidenced by their

mutual agreement as to the fair market value for the used excavator, a knowledge of

which is certainly beyond that of most people (including this writer and I venture to say

my colleagues on the bench), but not of those engaged in the excavation business.
Stark County, Case No. 2019CA00058                                               11

      {¶25} Accordingly, I would sustain Appellant’s assignment of error and reverse

the trial court’s grant of summary judgment in favor of Appellee.
