[Cite as Perk v. Tomorrows Home Solutions, L.L.C., 2016-Ohio-7784.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 104270




                                        JAMES PERK
                                                         PLAINTIFF-APPELLANT

                                                   vs.

     TOMORROWS HOME SOLUTIONS, L.L.C., D.B.A.
           OHIO BASEMENT SYSTEMS
                                                         DEFENDANT-APPELLEE




                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-14-825765

        BEFORE: Keough, P.J., E.T. Gallagher, J., and Stewart, J.

        RELEASED AND JOURNALIZED: November 17, 2016
ATTORNEY FOR APPELLANT

Daniel S. White
34 Parmalee Drive
Hudson, Ohio 44236


ATTORNEYS FOR APPELLEE

Scott A. Norcross
Melanie R. Irvin
Gallagher Sharp
Sixth Floor, Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} Plaintiff-appellant, James Perk (“Perk”), appeals from the trial court’s

judgment granting summary judgment in favor of defendant-appellee, Tomorrows Home

Solutions L.L.C., d.b.a. Ohio Basement Systems (“THS”), on its counterclaim. Finding

no merit to the appeal, we affirm.

                                       I. Background

       {¶2} In April 2014, Perk filed suit against THS. Perk’s complaint alleged that

he had entered into a contract to pay THS $9,450 for foundation repair services at his

home, that THS performed its services in a shoddy and unworkmanlike manner, and that

as a result of THS’s failure to honor its extended warranty, he would be required to incur

additional expense to repair THS’s defective work. THS answered the complaint, and

filed a counterclaim against Perk for $6,450 due under the contract.

       {¶3} THS subsequently filed a motion for summary judgment on its

counterclaim. Perk then dismissed his claims against THS without ever filing a brief in

opposition to THS’s motion.          The trial court granted THS’s motion for summary

judgment on its counterclaim against Perk, and this appeal followed.

                                     II. Law and Analysis

       {¶4} In his single assignment of error, Perk contends that the trial court erred in

granting THS’s motion for summary judgment.

       {¶5} Civ.R. 56(C) provides that summary judgment is appropriate when (1) there

is no genuine issue of material fact, (2) the moving party is entitled to judgment as a
matter of law, and (3) after construing the evidence most favorably for the party against

whom the motion is made, reasonable minds can reach only a conclusion that is adverse

to the nonmoving party.       Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367,

369-370, 696 N.E.2d 201 (1998); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327,

364 N.E.2d 267 (1977). We review the trial court’s judgment de novo, using the same

standard that the trial court applies under Civ.R. 56(C). Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105,

671 N.E.2d 241 (1996).

       {¶6} It is well established that the party moving for summary judgment bears the

burden of demonstrating that no material issues of fact exist for trial. Dresher v. Burt, 75

Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). The moving party bears the initial

responsibility 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 fact on a

material element of the nonmoving party’s claim. Id. The nonmoving party has a

reciprocal burden of specificity and must set forth specific facts by the means listed in

Civ.R. 56(C) showing that there is a genuine issue for trial. Id. The reviewing court

evaluates the record in a light most favorable to the nonmoving party. Saunders v.

McFaul, 71 Ohio App.3d 46, 50, 593 N.E.2d 24 (8th Dist. 1990). Any doubts must be

resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356,

358-359, 604 N.E.2d 138 (1992).
       {¶7} Perk contends that the trial court erred in granting summary judgment to THS

on its counterclaim because THS’s counterclaim was brought by an entity that was not a

party to the litigation. Specifically, Perk contends that he sued “Tomorrows Home

Solutions, L.L.C., d.b.a. Ohio Basement Systems,” but the contract attached to THS’s

counterclaim, pursuant to which THS claimed monies owed under the contract, identified

THS as “Tomorrows Home Solutions d/b/a Ohio Basement Systems,” without any

reference to the L.L.C. Thus, Perk contends that this entity is not the entity with whom

he contracted and that he subsequently sued. Perk’s argument is without merit.

       {¶8} First, it is well established that a litigant’s failure to raise an argument in the

trial court waives the litigant’s right to raise the issue on appeal. Foster v. Wells Fargo

Fin. Ohio, Inc., 195 Ohio App.3d 497, 2011-Ohio-4632, 960 N.E.2d 1022, ¶ 24. Perk

did not file a brief in opposition to THS’s summary judgment, and did not raise the issue

of alleged improper party at any other point in the proceedings. Accordingly, he cannot

raise the issue here for the first time on appeal.

       {¶9} Moreover, even if not waived, Perk’s argument lacks merit. Paragraph three

of Perk’s complaint states that on October 12, 2013, he and THS “entered into an

agreement * * * which is attached hereto and incorporated as Exhibit A.” (Emphasis

added.) The agreement attached to Perk’s complaint as Exhibit A identifies THS as

“Tomorrows Home Solutions dba Ohio Basement Systems,” without any reference to an

L.L.C. designation. This same agreement, which Perk’s complaint acknowledged was

the agreement between him and THS, was attached to THS’s answer and counterclaim.
Accordingly, there is no genuine issue of material fact that the THS that brought the

counterclaim is the same entity with whom Perk contracted and later sued.

       {¶10} Furthermore, we find no legal authority for Perk’s implied proposition that a

limited liability company must always use the L.L.C. designation on its corporate

documents in order for a contract with that company to be valid. Indeed, one court

considering an analogous situation has found that the omission of a corporate name

indicator in business dealings subsequent to the original articles of incorporation

submitted to the Ohio Secretary of State is insignificant. In Promotion Co. v. Sweeney,

150 Ohio App.3d 471, 2002-Ohio-6711, 782 N.E.2d 117 (7th Dist.), the Seventh District

considered whether a company’s failure to place “Inc.” after the company name in a

contract violated Ohio law such that the president of the company, who signed the

contract, was personally liable. The court found that corporate name indicators (such as

“company,” “incorporated,” “corporation,” or the abbreviations for these words) must be

included with the original corporate papers submitted to the secretary of state, but that

“the omission of a corporate name indicator in subsequent business dealings does not

extinguish the existence of a corporation and place personal liability on the representative

who signs a contract for the company.” Id. at ¶ 20. Accordingly, the fact that THS did

not use the L.L.C. designation on its contract with Perk is not dispositive of the validity of

the contract between him and THS.

       {¶11} Finally, we find no genuine issue of material fact to preclude summary

judgment in favor of THS.        Perk acknowledged that the agreement attached to his
complaint as Exhibit A was the contract between him and THS, the entity he sued. The

contract reflects that Perk agreed to pay THS $9,450 for its work; that he paid a $3,000

deposit; and that a balance of $6,450 was due upon completion. Because Perk did not

respond to THS’s motion for summary judgment, there is no evidence in the record to

create a factual dispute regarding THS’s counterclaim for Perk’s failure to pay the

amount due. Accordingly, the trial court properly granted summary judgment in favor of

THS on its counterclaim. The assignment of error is therefore overruled.

      {¶12} 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.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR
