[Cite as Advance Paroll Funding, Ltd. v. Maurer Elec., L.L.C., 2011-Ohio-1323.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                                     :      JUDGES:
ADVANCE PAYROLL FUNDING,                             :      William B. Hoffman, P.J.
LTD.                                                 :      Julie A. Edwards, J.
                                                     :      Patricia A. Delaney, J.
                        Plaintiff-Appellant          :
                                                     :      Case No. 10CA83
-vs-                                                 :
                                                     :
                                                     :      OPINION
MAURER ELECTRIC, LLC, et al.,

                     Defendant-Appellee




CHARACTER OF PROCEEDING:                                      Civil Appeal from Richland County
                                                              Court of Common Pleas Case No.
                                                              07CVF1315H

JUDGMENT:                                                     Reversed and Remanded

DATE OF JUDGMENT ENTRY:                                       March 18, 2011

APPEARANCES:

For Plaintiff-Appellant                                       For Defendant-Appellee

KENNETH BAKER                                                 ROBERT ROBY
Javitch, Block & Rathbone LLP                                 8000 Ravine’s Edge Court, Suite 103
1100 Superior Avenue, 19th Floor                              Columbus, Ohio 43235
Cleveland, Ohio 44114
[Cite as Advance Paroll Funding, Ltd. v. Maurer Elec., L.L.C., 2011-Ohio-1323.]


Edwards, J.

        {¶1}    Appellant, Advance Payroll Funding, Ltd., appeals a judgment of the

Richland County Common Pleas Court dismissing its complaint against appellee Darrell

Maurer.

                                   STATEMENT OF FACTS AND CASE

        {¶2}    Appellant filed the instant action on September 14, 2007, alleging that

defendant Maurer Electric, LLC (“Maurer Electric”) failed to pay for services rendered to

it by Technical Skilled Trade Services, a company which provides temporary staffing to

businesses. Appellant had entered into an agreement with Technical Skilled Trade

Services whereby all of Technical Skilled’s accounts receivable had been assigned to

appellant.

        {¶3}    Maurer Electric filed an answer denying liability and a counterclaim for

tortious interference with business relations.

        {¶4}    Appellee Darrell Maurer, president of Maurer Electric, filed a separate

action against appellant for defamation (Case No. 2007CV1700). Appellant filed an

answer denying the defamation allegations, and a counterclaim asserting the identical

claims set forth in its action against Maurer Electric under a “piercing the corporate veil”

theory. Upon motion by appellant, the trial court consolidated the two actions into one,

Case No. 2007CV1315.

        {¶5}    Subsequent to the consolidation, appellee dismissed the defamation

action against appellant.

        {¶6}    On January 10, 2009, appellant moved for summary judgment on its

claims against Maurer Electric and its claims against appellee, as well as on Maurer
Richland County App. Case No. 10CA83                                                     3


Electric’s claim for tortious interference with a business relationship. Appellee filed a

reply to the summary judgment motion.        In its response to appellee’s reply to the

summary judgment motion, appellant reasserted its arguments in support of summary

judgment against Maurer Electric on its claim and for judgment dismissing Maurer

Electric’s counterclaim. However, appellant retracted its motion concerning appellee:

      {¶7}   “Pertaining to Darrell Maurer personally, Advance concedes a question of

fact exists as to whether Mr. Maurer is personally liable for the entire sum of

$210,305.51, or only that portion of the claim that arose prior to the time Darrell Maurer

changed from a sole proprietorship to an LLC.” Reply Brief of Plaintiff to Defendants’

Response to Summary Judgment, April 28, 2009, p. 7.

      {¶8}   On July 31, 2009, the trial court entered summary judgment on appellant’s

claims against Maurer Electric for $210,305.51. The court overruled the motion for

summary judgment on the counterclaim, finding disputed facts precluded dismissing the

claim for tortious interference. The trial court denied the claim for summary judgment

against appellee, finding that appellant did not meet its burden of establishing its claim

that the corporate veil should be pierced.

      {¶9}   On November 9, 2009, Maurer Electric dismissed its claims against

appellant without prejudice. The trial court then cancelled the pending trial date and

closed the case. On June 9, 2010, the trial court issued the following judgment:

      {¶10} “It has been called to the attention of the Court that this Court did not

clearly state its intention in its Judgment Entry dated July 31, 2009. This Court stated in

its July 31, 2009 Judgment Entry: ‘the within Judgment Entry grants judgment to plaintiff
Richland County App. Case No. 10CA83                                                        4


in the amount of $210,305.51 against defendant Maurer Electric LLC and specifically

indicates that plaintiff’s judgment is against defendant corporation only.’”

       {¶11} “What this Court did not say in its earlier entry was that plaintiff’s efforts to

pierce the corporate veil and hold Darrell Maurer personally liable for the debts of

Maurer Electric LLC are not convincing and therefore Darrell Maurer is not personally

responsible for the debts of Maurer Electric LLC and therefore defendant’s counterclaim

for damages, costs and attorney fees against Darrell Maurer as an individual are hereby

Dismissed at defendant’s costs.”

       {¶12} Appellant assigns a single error to this judgment:

       {¶13} “WHETHER THE TRIAL COURT ERRED BY SUA SPONTE DISMISSING

THE PLAINTIFF’S CLAIMS AGAINST DEFENDANT DARRELL MAURER AS ‘NOT

CONVINCING’ WITHOUT PRIOR NOTICE.”

       {¶14} Although the trial court does not cite to a particular Civil Rule on which it

based its decision to dismiss appellant’s claim against appellee, it appears from the

court’s language, finding appellant’s efforts to pierce the corporate veil unconvincing,

that the court entered summary judgment in favor of appellee when the only summary

judgment motion pending before the court was filed by appellant.

       {¶15} The Ohio Supreme Court has held that Civ. R. 56 does not permit the

court to enter summary judgment in favor of a non-moving party. See Marshall v. Aaron

(1984), 15 Ohio St.3d 48, 472 N.E.2d 335, syllabus; Bowen v. Kil-Kare, Inc. (1992), 63

Ohio St.3d 84, 94, 585 N.E.2d 384.

       {¶16} The court in the instant case did have a pending motion for summary

judgment; however, such motion was filed by appellant, not appellee.              Appellant’s
Richland County App. Case No. 10CA83                                                        5


burden on the issue of piercing the corporate veil on summary judgment would be to

show that reasonable minds could only come to one conclusion and that conclusion is

adverse to appellee. Civ. R. 56(C).       That is a different burden than appellant would

have to meet at trial, and the court therefore erred in concluding that because appellant

failed to meet this burden on summary judgment, the court should enter summary

judgment dismissing the claim. In fact, appellant conceded prior to the court’s decision

on summary judgment that disputed issues of material fact precluded summary

judgment on this issue. No dispositive motion was filed by appellee on this issue. The

court therefore erred in dismissing the claim on the basis that the court found

appellant’s efforts to pierce the corporate veil “unconvincing” as appellant had no duty to

convince the court of the merits of its claim in order to avoid dismissal at that point in the

proceedings.
Richland County App. Case No. 10CA83                                           6


      {¶17} The assignment of error is sustained.

      {¶18} The judgment of the Richland County Common Pleas Court is reversed

and this cause is remanded to that court for further proceedings.




By: Edwards, J.

Hoffman, P.J. and

Delaney, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                               JUDGES

JAE/r0119
[Cite as Advance Paroll Funding, Ltd. v. Maurer Elec., L.L.C., 2011-Ohio-1323.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


ADVANCE PAYROLL FUDNING,                               :
LTD                                                    :
                                                       :
                           Plaintiff-Appellant         :
                                                       :
                                                       :
-vs-                                                   :       JUDGMENT ENTRY
                                                       :
MAURER ELECTRIC, LLC, et al.,                          :
                                                       :
                        Defendant-Appellee             :       CASE NO. 10CA83




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Richland County Court of Common Pleas is reversed and this matter is

remanded to the trial court for further proceedings. Costs assessed to appellee.




                                                           _________________________________


                                                           _________________________________


                                                           _________________________________

                                                                            JUDGES
