[Cite as Ruple v. Midwest Equip. Co., 2011-Ohio-2923.]




         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                      No. 95726



                              JOHN RUPLE, ET AL.
                                                  PLAINTIFFS-APPELLANTS

                                                    vs.

       MIDWEST EQUIPMENT COMPANY, ET AL.
                                                  DEFENDANTS-APPELLEES




                                          JUDGMENT:
                                           AFFIRMED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CV-696983


        BEFORE:           Sweeney, P.J., Keough, J., and E. Gallagher, J.
      RELEASED AND JOURNALIZED:                June 16, 2011

ATTORNEYS FOR APPELLANTS

Matthew E. Parkins, Esq.
Singerman, Mills, Desberg & Kauntz
3333 Richmond Road, Suite 370
Beachwood, Ohio 44122

Michael R. Houston, Esq.
Houston Legal Counsel, Inc., L.P.A.
2450 One Cleveland Center
1375 East Ninth Street
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEES

Charles V. Longo, Esq.
Matthew D. Greenwell, Esq.
Charles V. Longo Co., L.P.A.
25550 Chagrin Blvd., Suite 320
Beachwood, Ohio 44122



JAMES J. SWEENEY, P.J.:

      {¶ 1} Plaintiff-appellants, John Ruple (“Ruple”) and Chagrin Valley

Steel Erectors, Inc. (“Chagrin Valley”), appeal from the trial court’s journal

entry that granted defendants-appellees’ Midwest Equipment Company

(“Midwest”) and Joseph Manos (“Manos”), motion for summary judgment and

that also partially granted the appellees’ motion to strike Ruple’s affidavit.

For the reasons that follow, we affirm.
      {¶ 2} Appellants’ first three assignments of error concern the trial

court’s summary judgment order and will be addressed together. The last

assignment of error challenges the court’s order that struck the portions of

Ruple’s affidavit that were inconsistent with his deposition testimony.

      {¶ 3} Appellants’ complaint asserted claims against appellees for

breach of contract, promissory estoppel, and intentional or negligent

misrepresentation. In the last assignment of error, appellants contend that:

      {¶ 4} “IV.   The trial court erred in striking the supplemental affidavit

of John Ruple and failing to consider it as evidence in its determination of the

Motion for Summary Judgment of Defendants.”

      {¶ 5} We review a court’s denial of a motion to strike for an abuse of

discretion.   Abernathy    v.   Abernathy,   Cuyahoga      App.   No.     81675,

2003-Ohio-1528. An abuse of discretion is “more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (internal citations omitted).

      {¶ 6} Ruple was deposed on April 29, 2010.      On June 30, 2010 Ruple

submitted an affidavit in support of his brief in opposition to appellees’

motion for summary judgment. Appellees moved to strike Ruple’s affidavit

arguing that it conflicted with his deposition testimony.          Specifically,

appellees referenced the portion of Ruple’s deposition where he acknowledged
that the parties were negotiating the terms of Ruple’s purchase of Midwest

stock and that the stock purchase was never finalized. The court ultimately

granted the motion to strike in part and ordered “where the affidavit is

inconsistent with the prior testimony, and no explanation is offered for the

inconsistency, the court will disregard the inconsistent portion of the

affidavit.” The motion to strike was otherwise denied. The court found that

Ruple’s affidavit testimony was admissible to the extent it supplemented his

prior testimony.

      {¶ 7} The trial court did not abuse its discretion in rendering its

decision. The Ohio Supreme Court has held “that an affidavit of a party

opposing summary judgment that contradicts former deposition testimony of

that party may not, without sufficient explanation, create a genuine issue of

material fact to defeat a motion for summary judgment.” Byrd v. Smith, 110

Ohio St.3d 24, 2006-Ohio-3455, paragraph three of the syllabus.

      {¶ 8} Therefore, where Ruple’s affidavit contradicts his deposition

testimony without explanation, the court appropriately struck those portions

of Ruple’s affidavit that contradict his prior testimony without explanation.

To the extent Ruple contends that his affidavit contained supplemental

testimony, the court did not strike those portions of it.

      {¶ 9} The fourth assignment of error is overruled.

      {¶ 10} The first three assignments of error are stated as follows:
      {¶ 11} “I.     The trial court erred in granting summary judgment as to the

existence of a contract between Ruple and Midwest.”

      {¶ 12} “II.    The trial court erred in granting summary judgment as to

the claims of promissory estoppel of Ruple and CVSE against Midwest and

Manos.”

      {¶ 13} “III.    Summary judgment should not have been granted on the

intentional misrepresentation claim as the facts which form the basis of this

claim do not also form the basis of the breach of contract claim.”

      {¶ 14} Summary judgment is appropriate where it appears that: (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, who is entitled to have the

evidence construed most strongly in his favor. Harless v. Willis Day

Warehousing Co., Inc. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46; Civ.R.

56(C).

      {¶ 15} The burden is on the movant to show that no genuine issue of

material fact exists. Id. Conclusory assertions that the nonmovant has no

evidence to prove its case are insufficient; the movant must specifically point

to evidence contained within the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, etc., which affirmatively
demonstrate that the nonmovant has no evidence to support his claims.

Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264;

Civ.R. 56(C). Unless the nonmovant then sets forth specific facts showing

there is a genuine issue of material fact for trial, summary judgment will be

granted to the movant.

       {¶ 16} An appellate court reviews a trial court’s grant of summary

judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105,

671 N.E.2d 241.

       {¶ 17} The facts set forth below are construed under the applicable

standard.

       A. Breach of Contract

       {¶ 18} To succeed on a breach of contract claim, a party must prove the

existence of a contract, that party’s performance under the contract, the

opposing party’s breach, and resulting damage. See On Line Logistics, Inc. v.

Amerisource Corp., Cuyahoga App. No. 82056, 2003-Ohio-5381, at ¶39. To

prove the existence of a contract, a plaintiff must show that both parties

consented to the terms of the contract, that there was a “meeting of the

minds” of both parties, and that the terms of the contract are definite and

certain. Nilavar v. Osborn (2000), 137 Ohio App.3d 469, 738 N.E.2d 1271,

citing McSweeney v. Jackson (1996), 117 Ohio App.3d 623, 631, 691 N.E.2d

303.
      {¶ 19} “‘A court cannot enforce a contract unless it can determine what

it is. It is not enough that the parties think that they have made a contract.

They must have expressed their intentions in a manner that is capable of

being understood. It is not even enough that they had actually agreed, if their

expressions, when interpreted in the light of accompanying factors and

circumstances, are not such that the court can determine what the terms of

that agreement are. Vagueness of expression, indefiniteness and uncertainty

as to any of the essential terms of an agreement, have often been held to

prevent the creation of an enforceable contract.’” Rulli v. Fan Co. (1997), 79

Ohio St.3d 374, 376, 683 N.E.2d 337, quoting, 1 Corbin on Contracts

(Rev.Ed.1993) 525, Section 4.1.

      {¶ 20} Appellants alleged that they entered an oral contract with

appellees whereby Ruple would become an employee of Midwest while a stock

purchase agreement was being finalized.         Appellants alleged appellees

breached an alleged provision of this contract that provided that Ruple would

earn salary and benefits equivalent to Manos’s business partners in Midwest.

      {¶ 21} Ruple testified that he was never made an employee of Midwest

but instead worked for Commercial Crane & Rigging, Inc. (“Commercial

Crane”); a company that Manos had acquired at Midwest’s expense. Ruple

did not contribute any capital to the purchase of Commercial Crane. Ruple

was employed at Commercial Crane from October of 2005 until October of
2006. Ruple received compensation during his employment at Commercial

Crane until he resigned.   According to Ruple’s own evidence, he was to

receive a salary of $100,000.00 plus benefits while employed with Commercial

Crane.

     {¶ 22} During his deposition, Ruple testified that his purchase of

Midwest stock was never finalized. However, Ruple said he began winding

down the business of Chargin Valley in 2005 in anticipation of a merger with

Midwest.    But in his subsequent affidavit, Ruple averred that he could not

shut down Chagrin Valley because it was being utilized by Commercial Crane

as a subcontractor. He could not provide any amount of damage suffered by

Chagrin Valley during this time period but said that he stopped actively

pursuing business for Chagrin Valley when he accepted employment with

Commercial Crane.     The undisputed evidence illustrates that Chagrin

Valley’s business continued to grow during the time Ruple was employed with

Commercial Crane.

     {¶ 23} By letter dated April 19, 2006, Manos informed Ruple that he

wished to “table the negotiations” on Ruple’s purchase of Midwest stock and

“removed” all previous preliminary agreements.         The correspondence

reflected that Ruple could continue as President of Commercial Crane while

at the same time continue the operations of his own separate company,

Chagrin Valley.
      {¶ 24} After Ruple tendered his resignation from employment with

Commercial Crane, Manos solicited terms of separation by letter dated

September 13, 2006.        In response, Ruple 1 transmitted, by facsimile, a

breakdown of unresolved matters.       This document was titled “Severance

Package.” Therein, Ruple sets forth his “quoted salary” as $100,000.00 and

identified the amount owed as being “$16,370.96.” The document set forth

various other line items and sought a total amount of $53,170.96, including

payment for specified equipment assets.         Ruple confirmed that Manos

thereafter issued him a check in the amount of $50,000.00 that indicated it

was “full restitution.” Ruple cashed the check.

      {¶ 25} In opposition to appellees’ motion for summary judgment,

appellants maintained that there were genuine issues of material fact

concerning the fact as to the breach of contract.       Specifically, appellants

maintained that Ruple had not received vacation pay and that appellants did

not receive “compensation for the use of its equipment not listed on the

Severance Package list.”

      {¶ 26} Even construing the evidence in a light most favorable to

appellants, it is insufficient to sustain a breach of contract claim on either

point. Ruple offers his affidavit testimony in support of his claim that he did

      1
        Although the correspondence is signed “John,” Ruple stated during his
deposition that his wife actually prepared and sent the separation terms to Manos
on his behalf.
not receive vacation pay or additional monies for the use of equipment.

However, the documentary evidence establishes that Ruple received salary

and benefits equivalent to Manos’s business partners in Midwest, and there is

no evidence that there was ever an agreement concerning the rental of the

unidentified equipment. Further, Ruple himself identified the outstanding

issues in the severance package document he sent to Manos. In response,

Manos issued him a check designated as full restitution, which Ruple cashed

without reservation. Even assuming the existence of a contract on the terms

alleged by appellants, they have not presented evidence that would create a

genuine issue of material fact concerning the breach thereof. The trial court

properly entered summary judgment in favor of Appellees on this claim.

      B. Promissory Estoppel

      {¶ 27} “[I]n order to state a claim for promissory estoppel, the plaintiff

‘must establish the following elements: 1) a clear and unambiguous promise,

2) reliance on the promise, 3) that the reliance is reasonable and foreseeable,

and 4) that he was injured by his reliance.’” Stern v. Shainker, Cuyahoga App.

No. 92301, 2009-Ohio-2731, ¶9.

      {¶ 28} The crux of this claim is that appellees promised Ruple he could

purchase stock in Midwest. While this may establish the first element of

this claim, the evidence is lacking on the remaining elements.           Ruple

repeatedly acknowledged during his deposition that the parties were in the
process of negotiating his contemplated purchase of the Midwest stock. The

documents support the preliminary nature of these dealings, including the

correspondence sent June 28, 2005 describing Manos’s “broad stroke view on

an agreement,” and the “stock purchase agreement” dated October 21, 2005,

which was a one page “letter of agreement” to “outline and serve as a

preliminary agreement” between Midwest and Ruple.              The evidence

adequately reflects efforts being made by the parties to enter a stock

purchase agreement. However, one was never finalized and the contents of

the documents indicate a process of negotiations.

      {¶ 29} Although Ruple maintained he accepted employment with

Commercial Crane in reliance on the promise of stock ownership in Midwest;

the evidence does not establish that his reliance was reasonable or

detrimental.   Ruple was compensated by Commercial Crane during his

employment and continued to operate Chagrin Valley.          Chagrin Valley’s

revenues increased during this time period.         In opposition to summary

judgment, appellants contend they were damaged because they stopped

pursuing lucrative contracts with Chagrin Valley’s regular customers. Any

alleged damages that Ruple asserted in his affidavit were suffered by Chagrin

Valley as a consequence of his employment with Commercial Crane are

speculative at best and do not create a genuine issue of material fact
necessary to sustain this claim. The trial court properly granted summary

judgment to appellees on the promissory estoppel claim.

      C. Intentional Misrepresentation Claim

      {¶ 30} Appellants’ complaint alleged that “Manos intentionally and/or

negligently misrepresented Midwest’s and Midwest’s owners’ interest in

committing to allow Ruple to purchase an interest in Midwest for

$250,000.00.”

      {¶ 31} Intentional misrepresentation requires proof of the following:

      {¶ 32} “(a) a representation * * *, (b) which is material to the transaction

at hand, (c) made falsely, with knowledge of its falsity, or with such utter

disregard and recklessness as to whether it is true or false that knowledge

may be inferred, (d) with the intent of misleading another into relying upon

it, (e) justifiable reliance upon the representation or concealment, and (f) a

resulting injury proximately caused by the reliance.” Russ v. TRW, Inc.

(1991), 59 Ohio St.3d 42, N.E.2d 49 (citations omitted).

      {¶ 33} In order to state a claim of negligent misrepresentation, a

plaintiff must produce evidence of the following elements:

      {¶ 34} “One   who, in the course of his business, profession or

employment, or in any other transaction in which he has a pecuniary interest,

supplies false information for the guidance of others in their business

transactions, is subject to liability for pecuniary loss caused to them by their
justifiable reliance upon the information, if he fails to exercise reasonable

care or competence in obtaining or communicating the information.” 3

Restatement of the Law 2d, Torts (1965) 126-127, Section 552(1), applied by

the Supreme Court of Ohio in Gutter v. Dow Jones, Inc. (1986), 22 Ohio St.3d

286, 22 OBR 457, 490 N.E.2d 898. Justifiable reliance is a prima facie

element of negligent misrepresentation. Sindel v. Toledo Edison Co. (1993),

87 Ohio App.3d 525, 531, 622 N.E.2d 706.

     {¶ 35} There   is   no   evidence   that   Manos   either   negligently   or

intentionally misrepresented the Midwest owner’s interest in having Ruple

purchase Midwest stock. The evidence reflects that the parties engaged in

acts reflecting that intent, including hiring Ruple to operate Commercial

Crane, appointing him as director of Midwest, and approving the future sale

of stock to Ruple at a price to be determined. The parties negotiated towards

effecting this purpose but the terms of the sale were never finalized. After a

period of operations, appellees tabled the negotiations but indicated that

there was a possibility of discussing the sale at a future date. Appellees

wanted Ruple to continue as president of Commercial Crane while he

continued to operate his own company Chagrin Valley. Ruple opted to resign

his employment with Commercial Crane and focused his efforts on Chagrin

Valley. The facts do not create a genuine issue of material fact on this claim
and the trial court did not err by entering judgment in favor of appellees on

this claim.

      Judgment affirmed.

      It is ordered that appellees recover from appellants 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.




JAMES J. SWEENEY, PRESIDING JUDGE

KATHLEEN A. KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR
