Hornacek v. Madenfort , 2019 Ohio 5180 ( 2019 )

[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.