[Cite as R. C. Costello & Assoc., Inc. v. Energy Technologies, Inc., 2018-Ohio-2092.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


R. C. COSTELLO & ASSOC., INC.    :                               JUDGES:
                                 :                               Hon. John W. Wise, P.J.
     Plaintiff-Appellee          :                               Hon. Patricia A. Delaney, J.
                                 :                               Hon. Earle E. Wise, Jr., J.
-vs-                             :
                                 :
ENERGY TECHNOLOGIES, INC., et al :                               Case No. 17CA103
                                 :
     Defendants-Appellants       :                               OPINION



    CHARACTER OF PROCEEDING:                                     Appeal from the Court of Common
                                                                 Pleas, Case No. 17-CV-0037 R




JUDGMENT:                                                        Affirmed




DATE OF JUDGMENT:                                                May 25, 2018




APPEARANCES:

For Plaintiff-Appellee                                           For Defendants-Appellants

ALEXANDER V. DATTILO                                             BENEJAMIN D. KITZLER
600 Superior East                                                Richland Bank Building
Suite 600                                                        Suite 803
Cleveland, OH 44114                                              Mansfield, OH 44902
Richland County, Case No. 17CA103                                                        2

Wise, E.

       {¶ 1} Defendant-appellant Energy Technologies, Inc., et al. (ETI), appeals the

November 17, 2017 judgment of the Richland County Court of Common Pleas striking

appellant’s motion for summary judgment, and granting appellee’s motion for summary

judgment. Appellee is R.C. Costello & Assoc., Inc. (Costello).

                            FACTS AND PROCEDURAL HISTORY

       {¶ 2} Appellant Dan Madden of ETI, during the course of this proceeding, was the

principal of an Ohio company seeking investment funding in order to create a process for

reforming hydrogen using a base facilitated system. Appellee Costello is a California

company which provides engineering design and construction supervisions to the

chemical and biofuels industries.

       {¶ 3} According to Costello’s January 10, 2017 complaint, in February 2015,

Madden, contacted Costello on behalf of ETI to request Costello perform various tasks

and projects for ETI’s use in an effort to attract a particular client. Costello built five

computer programs (ChemCad Models) for ETI, assisted with one of ETI’s PowerPoint

presentations, and participated in a presentation for ETI’s potential client. For these

services, Costello billed ETI $16,930 and ETI refused to pay. Costello alleged breach of

implied contract, unjust enrichment, and restitution.

       {¶ 4} ETI filed an answer on February 2, 2017 denying the allegations contained

in Costello’s complaint.

       {¶ 5} On August 31, 2017, Costello filed a motion for summary judgment.

       {¶ 6} On September 19, 2017, ETI filed a memorandum contra to summary

judgement and a motion for summary judgment. According to ETI, Costello was asked to
Richland County, Case No. 17CA103                                                         3


provide an estimate of the cost of preliminary engineering for the project and nothing more

as ETI had yet to acquire funding for the project. The hiring of Costello, according to ETI,

was contingent on the acquisition of funding for the project. Costello provided ETI with a

contract, but ETI never signed the same, and claimed no work was requested of Costello

beyond the preparation of an estimate. ETI further claimed that Costello never provided

any services or benefit to ETI.

       {¶ 7} ETI’s motion for summary judgment was filed out of time, and without leave

of the trial court to file out of time.

       {¶ 8} On September 26, 2017, Costello filed a reply to ETI’s motion and

memorandum contra and a motion to strike ETI’s motion for summary judgment.

       {¶ 9} On November 17, 2017, the trial court issued a judgment entry granting

Costello’s motion for summary judgment and further granting Costello’s motion to strike

ETI’s motion for summary judgment. The trial court granted judgment in favor if Costello

in the amount of $16,930.

       {¶ 10} ETI now brings this appeal, raising one assignment of error:

                                                 I

       {¶ 11} “THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE’S

MOTION FOR SUMMARY JUDGMENT BECAUSE THERE ARE GENUINE ISSUES OF

MATERIAL FACT THAT PRECLUDE SUMMARY JUDGMENT.”

       {¶ 12} In its sole assignment of error, ETI argues the trial court erred in granting

Costello’s motion for summary judgement. We disagree.
Richland County, Case No. 17CA103                                                     4


      {¶ 13} 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.



      {¶ 14} 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).

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

15CA56, 2015-Ohio-4444, ¶ 13:
Richland County, Case No. 17CA103                                                         5


            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.
Richland County, Case No. 17CA103                                                      6


      {¶ 16} There is no dispute that ETI never signed a contract with Costello. Costello

argues, however, the contract between itself and ETI was implied-in-fact.

      {¶ 17} In F & J Welding, Inc. v. Emery, 5th Dist. Tuscarawas No. 91AP060025,

1992 WL 89971 (April 20, 1992) we explained:



             To show a contract implied-in-fact, services must be rendered, work

      performed, or materials furnished by one party under circumstances such

      that the party to be charged knew or should have known that the services

      were given with the expectation of being paid their reasonable worth. Terex

      Corp. v. Grim Welding Co. (1989), 58 Ohio App.3d 80, 568 N.E.2d 739,

      syllabus 2; Tanski v. White (1952), 92 Ohio App. 411, 416, 109 N.E.2d 319,

      322-23. Therefore, under Ohio law, recovery for a contract implied-in-fact is

      the reasonable value of the services rendered * * *



      {¶ 18} Here ETI argues the trial court erred in grating Costello’s motion for

summary judgement because the following genuine issues of material fact exist: (1) What

if anything did ETI request of Costello; (2) Did ETI know Costello was preforming work

and expected to be paid; (3) Did Costello actually preform services for ETI; and (4) Did

any of the services performed by Costello benefit ETI.

      {¶ 19} We have examined the emails and affidavits in this matter. Contrary to ETI’s

argument that it asked for nothing beyond an estimate, never requested services from

Costello, and never requested ChemCAD computer simulations, the emails demonstrate

otherwise. ETI asked Costello to participate in a meeting with a potential client, edit a
Richland County, Case No. 17CA103                                                            7


PowerPoint presentation for that meeting, and to “* * * bring the ChemCAD terminal to

show the dynamic interactive features for the modeling we have done to that point. We

can also use that to illustrate the ability to factor various run rates.” Moreover, on March

9, 2015, Costello emailed ETI a computer simulation chosen by ETI. While ETI claims it

received no benefit, these tasks appear to have been performed in an attempt by ETI to

land a client or an investor. Simply because that apparently did not happen does not

mean ETI received no benefit as a result of Costello's labor. Finally, there further appears

to be an indication in an April 13, 2015 email that ETI understood that Costello expected

to be paid for work performed, as ETI advised Costello “Phil and I have been busy

applying a different kind of pressure to would be investors, so hang in there.”

       {¶ 20} Based on the forgoing, we find an implied-in-fact contract existed between

the parties and thus find no error in the trial court's decision granting Costello's motion for

summary judgment. Because we find an implied-in-fact contract, we do not reach the

issue of unjust enrichment.
Richland County, Case No. 17CA103                                                 8


      {¶ 21} The judgment of the Richland County Court of Common Pleas is affirmed.


By Wise, Earle, J.

Wise, John, P.J. and

Delaney, J. concur.




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