Riesterer v. Porter , 2022 Ohio 1698 ( 2022 )

[Cite as Riesterer v. Porter, 2022-Ohio-1698.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
Roberta Jean Riesterer Court of Appeals No. E-21-005
Appellee Trial Court No. 2018-CV-0257
v.
Michael E. Porter, et al. DECISION AND JUDGMENT
Appellants Decided: May 20, 2022
*****
Linda R. Van Tine and Mark A. Stuckey, for appellee.
William H. Smith, Jr., for appellants.
*****
MAYLE, J.
{¶ 1} Appellants, Michael Porter and MPORT Home Improvement, LLC
(“MPORT”), appeal the February 17, 2021 decision of the Erie County Court of
Common Pleas granting summary judgment in favor of appellee, Roberta Riesterer, and
warding her $27,755 in damages for Porter and MPORT’s breach of contract.1 For the
following reasons, we reverse.
I. Background and Facts
{¶ 2} In October 2016, Porter and Riesterer signed a document regarding
extensive remodeling work for a condominium that Riesterer owns. The document is
divided into four sections. The first section includes the title “Proposal” followed by the
name “MPORT Home Improvement LLC” and the company’s contact information. The
rest of this section contains Riesterer’s name, some information about her property, and
the date. The second section of the document begins, “We hereby submit specifications
and estimates for[,]” followed by a handwritten list of remodeling tasks for the
condominium. The third section starts, “We propose hereby to furnish material and labor
* * * for the sum of:” followed by a blank line on which “$18,400 1/2 Down @ signing
— progress pymt — BAL @ completion [sic]” is written. At the bottom of the third
section is “Respectfully / submitted” followed by a blank line on which Porter signed
only his name; he did not include the words “by” or “for,” his position with MPORT, his
business title, or any other professional designation. The final section of the document
includes the heading “Acceptance of Proposal” and was signed by Riesterer. There are
1
Porter and MPORT are not challenging that portion of the trial court’s summary-
judgment decision finding that MPORT is liable for breach of contract, and we are not
addressing that portion of the decision on appeal.
2.
also handwritten notations at the bottom of the page showing that Riesterer paid a total of
$12,000 toward the agreed-upon price.
{¶ 3} MPORT did not complete the remodeling work on Riesterer’s
condominium. In May 2018, Riesterer filed a complaint against “Michael E. Porter,
Individually and, doing business as MPORT Home Improvement LLC,” alleging breach
of contract due to the incomplete renovations.2
{¶ 4} During discovery, Riesterer’s attorney sent requests for admission to Porter
and MPORT’s attorney, but Porter and MPORT did not respond. Consequently, the
requests for admission were deemed admitted. As relevant here, the requests for
admission included the facts that (1) Porter and MPORT’s failure to complete the
performance required of them under the proposal was a breach of contract, (2) Porter,
individually, performed most of the work at Riesterer’s condominium, and (3) regarding
15 specific portions of the remodel, Porter and MPORT failed to perform, performed in
an unworkmanlike manner, or both.
{¶ 5} In February 2020, Riesterer filed a motion for summary judgment. The
entirety of her argument was that the requests for admission that were deemed admitted
proved that Porter, individually, and MPORT breached the contract and were liable to her
for damages. In support of her motion, she included an affidavit from Anthony Schaefer,
2
The complaint also included Porter’s wife as a defendant and alleged claims of
fraudulent transfer of real estate and violation of the Home Solicitation Sales Act, but
those claims are not ripe for decision and are not before us in this appeal.
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who claimed that he had “been active in the construction and remodeling industry for
over 30 years.” Attached to Schaefer’s affidavit was an “Inspection Checklist”—
apparently created by Riesterer’s attorneys—that listed each complaint that Riesterer had
with MPORT’s work and asked Schaefer to rate his level of agreement with Riesterer’s
assessment of the work on a scale of 1 to 5, with 1 meaning “Strongly Disagree” and 5
meaning “Strongly Agree.” Schaefer was also able to comment on each item in the
checklist. Following his inspection, Schaefer also provided Riesterer with a “preliminary
proposal to fix what is wrong with the work * * *.” He estimated that repairs would cost
$27,755.
{¶ 6} In their response, Porter and MPORT conceded that MPORT breached the
contract with Riesterer, but argued that Riesterer failed to prove that she could pierce the
LLC veil to hold Porter personally liable on the contract. They also argued that the
amount of damages was disputed because Riesterer’s attorneys had prevented Porter and
MPORT’s expert from inspecting Riesterer’s condominium. Although they attached a
copy of the October 2016 proposal to their response, Porter and MPORT did not include
any other evidence or affidavits to support their arguments in opposition to Riesterer’s
motion.
{¶ 7} In her reply, Riesterer argued for the first time that Porter “did not properly
shield himself with the corporate veil” because he “did not otherwise designate himself
(next to his signature) as a representative of MPORT.” (Emphasis deleted.) She also
argued for the first time that an agency relationship was created between her and Porter
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because it was “Michael, individually, who performed all the remodeling work.
Therefore, Michael is personally liable to Riesterer for damages.” (Emphasis deleted.)
And Riesterer pointed out that Porter failed to present any Civ.R. 56(C) evidence that
MPORT was, in fact, an LLC in good standing, so his arguments related to piercing the
LLC veil were inapplicable.
{¶ 8} In its February 17, 2021 judgment entry, the trial court granted Riesterer’s
motion for summary judgment. The court found that (1) Riesterer and MPORT entered
into a contract for home improvements at Riesterer’s property, (2) Porter “signed without
indicating he was signing on behalf of MPORT,” (3) “MPORT Home Improvement
LLC” conceded that “MPORT Home Improvement LLC” failed to complete the terms of
the contract, (4) Porter and MPORT failed to respond to Riesterer’s requests for
admission, which were deemed admitted, and (5) Porter and MPORT conceded that
“MPORT Home Improvement LLC” failed to perform under the contract.
{¶ 9} Based primarily on Porter and MPORT’s concessions, the trial court
determined that Riesterer was entitled to summary judgment against MPORT. The court
also held, without any further analysis or citation to case law that “Michael Porter signed
the October 5, 2019 [sic] proposal without any designation as a representative of
MPORT. Therefore, Michael Porter did not properly shield himself within the corporate
veil and entered a contract between [Riesterer] and Michael Porter, individually[,]” and
Riesterer was also entitled to summary judgment against Porter.
5.
{¶ 10} Regarding Riesterer’s damages under the contract, the trial court found that
Riesterer provided an expert opinion that she sustained damages of $27,755, and,
although Porter and MPORT claimed that their attempts to have their expert inspect
Riesterer’s property were blocked by Riesterer’s attorneys, they did not provide any
evidence that they were prevented from providing their own estimate of Riesterer’s
damages. The court accepted the amount proposed by Riesterer’s expert as the correct
amount of damages, and awarded her a judgment of $27,755 against Porter and MPORT,
jointly and severally.
{¶ 11} Porter and MPORT now appeal, raising two assignments of error:
Assignment of Error #1: The Trial Court Erred by Granting
Appellee’s Motion for Summary Judgment as to Appellant, Michael C.
Porter’s Individual Liability Under the Contract.
Assignment of Error #2: The Trial Court Erred by Granting
Appellee’s Motion for Summary Judgment as to an Amount of Damages as
There are Genuine Issues of Material Fact as to the Amount of Damages[.]
II. Law and Analysis
A. Issues of fact remain regarding Porter’s personal liability.
{¶ 12} In their first assignment of error, Porter and MPORT argue that the trial
court erred by holding Porter personally liable under the contract between Riesterer and
MPORT, a limited liability company. Riesterer responds that Porter and MPORT did not
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meet their burden under Civ.R. 56 to set forth specific facts showing that a genuine issue
remained for trial.
{¶ 13} An appellate court reviews summary judgment de novo, employing the
same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,
671 N.E.2d 241 (1996); Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,
572 N.E.2d 198 (9th Dist.1989). The court can grant a motion for summary judgment
only when the moving party demonstrates:
(1) that there is no genuine issue as to any material fact; (2) that the moving
party is entitled to judgment as a matter of law; and (3) that 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., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978);
Civ.R. 56(C).
{¶ 14} The party seeking summary judgment must specifically delineate the basis
upon which the motion is brought and identify those portions of the record that
demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio
St.3d 280, 293, 662 N.E.2d 264 (1996); Mitseff v. Wheeler, 38 Ohio St.3d 112, 526
N.E.2d 798 (1988), syllabus. When a properly supported motion for summary judgment
is made, an adverse party may not rest on mere allegations or denials in the pleadings, but
must respond with specific facts showing that there is a genuine issue of material fact.
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Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). The
opposing party must do so using “pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact * *
*.” Civ.R. 56(C). A “material” fact is one that would affect the outcome of the suit
under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio
App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110
Ohio App.3d 817, 827, 675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
{¶ 15} Porter and MPORT’s arguments center on piercing the LLC veil to hold
Porter personally liable under a contract that Riesterer made with MPORT. We need not
reach this issue, however, because we find that there are genuine issues of material fact
regarding Porter’s personal liability. Specifically, construing the facts most strongly in
Porter’s favor, it is unclear from the record whether Riesterer met her initial burden of
proving that MPORT was a sole proprietorship—as she seems to imply in her complaint
and motion for summary judgment—rather than a limited liability company—as Porter
and MPORT claim in their answer.
{¶ 16} First, to impose personal liability on Porter, Riesterer, as the moving party,
had the initial burden of proving either that MPORT is the type of business entity that
automatically allows its owner to be held personally liable—i.e., that it is a sole
proprietorship—or, if MPORT is some other type of business entity, that she had some
way to reach beyond the corporate form to hold Porter liable. She did neither.
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{¶ 17} In her complaint, Riesterer named “Michael E. Porter, Individually and,
doing business as MPORT Home Improvement LLC” as defendants. She alleged that
Porter was “an individual who does business as MPORT Home Improvement LLC” and
that the “company was established on the records of the Ohio Secretary of State on June
15, 2015.” The proposal for renovations on Riesterer’s condominium that Riesterer
attached to her complaint clearly indicates that “MPORT Home Improvement LLC” is
the entity that issued the proposal. In their answer, Porter and MPORT responded that
“as an individual, Michael E. Porter incorporated his business as MPORT Home
Improvement LLC on June 15, 2015[,] * * *” but denied the remaining allegations in that
paragraph of the complaint.
{¶ 18} In her motion for summary judgment, despite Porter’s denial in the answer,
Riesterer did not present any further evidence of MPORT’s status as an entity; she merely
realleged that Porter was “an individual who does business as MPORT Home
Improvement LLC”—apparently implying that Porter operated MPORT as a sole
proprietorship, despite his claim to the contrary in his answer—and that “[t]his company
was established on the records of the Ohio Secretary of State on June 15, 2015.”
(Emphasis deleted.) At best, this information, construed most strongly in Porter’s favor,
raises questions about the type of entity that MPORT is.
{¶ 19} MPORT’s business form is important because it directly affects any
determination of Porter’s personal liability. If MPORT is operated as a sole
proprietorship, Porter would be personally liable under the contract as a matter of law
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because “‘[a] sole proprietorship has no legal identity separate from that of the individual
who owns it. * * * The individual who does business as a sole proprietor * * * remains
one person, personally liable for all his obligations[.]’” Nieman v. Tucker, 2020-Ohio-
4704, 159 N.E.3d 912, ¶ 17 (6th Dist.), quoting Patterson v. V & M Auto Body, 63 Ohio
St.3d 573, 574-575, 589 N.E.2d 1306 (1992). In contrast, if MPORT is a limited liability
company, imposing personal liability on Porter is not automatic because, generally
speaking, a member of an LLC is not personally liable for the LLC’s debts, obligations,
or liabilities, including the LLC’s contractual liabilities. Former R.C. 1705.48(A), (B).3
Without that crucial first piece of information, we cannot say that Riesterer is entitled to
judgment against Porter as a matter of law.
{¶ 20} Additionally, the requests for admission that Porter and MPORT failed to
respond to—and that were consequently deemed admitted under Civ.R. 36(A)(1)—do not
conclusively establish Porter’s personal liability.
{¶ 21} Under Civ.R. 36(A), a party may serve another party with a written request
to admit the truth of any matter within the scope of Civ.R. 26(B). The information is
deemed admitted if the party to whom the request is directed fails to answer the request
3
On April 12, 2021, R.C. Chapter 1706—the Ohio Revised Limited Liability Company
Act, which revamped Ohio’s limited-liability-company laws—went into effect. See 2020
Am.Sub.S.B. No. 276. The act also repealed the LLC laws in former Chapter 1705
effective January 1, 2022. Id. at Section 3-4. However, the repeal of the statutes in R.C.
Chapter 1705 “shall not affect an action commenced, proceeding brought, or right
accrued prior to January 1, 2022.” Id. at Section 5. Riesterer filed her complaint in the
trial court on May 9, 2018—long before January 1, 2022—so the former LLC laws apply.
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within the time designated by rule. Civ.R. 36(A)(1); LVNV Funding, LLC v. Takats, 6th
Dist. Lucas No. L-14-1129, 2015-Ohio-3082, ¶ 12. Any matter deemed admitted under
Civ.R. 36 is conclusively established unless the court allows the admission to be
withdrawn or amended. MSW Capital, LLC v. Bryant, 6th Dist. Lucas No. L-16-1200,
2017-Ohio-5683, ¶ 10. An admission can be used to establish a fact essential to the case
and is also a proper basis for a motion for summary judgment. Takats at ¶ 14, citing
Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66, 485 N.E.2d 1052 (1985); Carmel Fin.
Corp. v. Leal, 6th Dist. Lucas No. L-06-1049, 2006-Ohio-5618, ¶ 17. Civ.R. 36 is self-
executing; that is, if a party fails to answer a request for admission, the matter is
conclusively established without further action by the requesting party. Spencer v.
Stowell, 6th Dist. Wood No. WD-16-044, 2017-Ohio-7353, ¶ 18, citing Samaan v.
Walker, 10th Dist. Franklin No. 07AP-767, 2008-Ohio-5370, ¶ 8.
{¶ 22} The requests for admission in this case that are most pertinent to Porter’s
personal liability are Request Nos. 1, 4, and 6. Request No. 1 reads, “Referring to
paragraph 13 of the Complaint, to wit: ‘Defendants’ actions or inactions constitute a
breach of contract.’”—an allegation that Porter and MPORT denied in full—“Admit that
your failure to complete performance that is required of you under the contract constitute
[sic] a breach of the contract.” Request No. 4 reads, “Admit that Michael E. Porter,
individual, performed the majority of the work for improvements made to the subject
property.” And request No. 6 reads, in part, “Admit that you failed to perform work and /
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or failed to do so in a workmanlike manner below industry standards pertaining to * * *”
15 specific remodeling tasks at Riesterer’s condominium.
{¶ 23} Although the defendants in this case—i.e., “Michael E. Porter, Individually
and, doing business as MPORT Home Improvement LLC”—are deemed to have
admitted to breaching the contract, failing to perform work, and performing in an
unworkmanlike manner, there is no way to tell if the “you” and “your” in Request Nos. 1
and 6 refer to Porter personally and individually, Porter in his representative capacity as
the owner of MPORT, MPORT as an entity, or some combination of these. These are not
questions that can be resolved on summary judgment.
{¶ 24} Moreover, the fact that Porter personally did most of the work at
Riesterer’s condominium is not necessarily indicative that he is personally liable under
the contract. Legally, an LLC is an entity that is separate and distinct from its members,
and members can be considered employees of the LLC in certain circumstances. See,
e.g., Trickett v. Masi, 11th Dist. Portage No. 2018-P-0006, 2018-Ohio-4270, ¶ 19, citing
Disciplinary Counsel v. Kafele, 108 Ohio St.3d 283, 2006-Ohio-904, 843 N.E.2d 169, ¶
18 (an LLC is a legal entity separate from its members); Damas v. Damas, 6th Dist.
Lucas No. L-10-1125, 2011-Ohio-6311, ¶ 50, citing Kafele at ¶ 18 (same); former R.C.
1705.01(D)(2)(e) (defining an LLC as a separate entity); Internatl. Bhd. of Elec. Workers,
Local Union No. 8 v. Kingfish Elec., LLC, 6th Dist. Williams No. WM-11-006, 2012-
Ohio-2363, ¶ 27-29 (discussing whether LLC members were employees of the LLC for
purposes of prevailing wage laws). Thus, the mere fact that Porter was the person doing
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the work at Riesterer’s condominium does not also mean that he was the entity that was
contractually obligated to complete the work.
{¶ 25} In short, it is not possible to determine, just from the requests for
admission, that Porter is personally liable under the contract.
{¶ 26} Riesterer argues that the trial court correctly granted summary judgment on
the issue of Porter’s personal liability because Porter and MPORT did not submit any
evidence, as required by Civ.R. 56(E), in opposition to her motion for summary
judgment. Riesterer is correct that once the moving party identifies portions of the record
that demonstrate the absence of a genuine issue of material fact the nonmoving party
cannot rest on the allegations or denials in the pleadings, but must respond with some
specific fact in the record or evidentiary material showing that an issue remains for trial.
Civ.R. 56(E); Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264; Riley, 11 Ohio St.3d at 79,
463 N.E.2d 1246; Lakeview Loan Servicing, LLC v. Amborski, 6th Dist. Lucas No. L-14-
1242, 2016-Ohio-2978, ¶ 27. However, Civ.R. 56(E) does not require the opposing party
to submit evidence—which Civ.R. 56(C) defines as “depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact * * *”—unless and until “a motion for summary judgment is made
and supported as provided in this rule * * *.” (Emphasis added.) Civ.R. 56(E). Because
Riesterer did not meet her burden of establishing that there were no questions of fact
regarding Porter’s personal liability, Porter and MPORT’s reciprocal duty under Civ.R.
56(E) to respond with “specific facts showing that there is a genuine issue for trial” never
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arose. Thus, Riesterer’s argument that the trial court properly granted summary judgment
against Porter personally because Porter and MPORT did not include any Civ.R. 56
evidence with their response lacks merit.
{¶ 27} Because genuine issues of material fact remain regarding Porter’s personal
liability under the contract, the trial court erred in granting summary judgment against
Porter individually. Accordingly, Porter and MPORT’s first assignment of error is well-
taken.
B. Issues of fact remain regarding Riesterer’s damages.
{¶ 28} In their second assignment of error, Porter and MPORT argue that the trial
court erred in granting summary judgment on the issue of Riesterer’s damages because
the assessment that Riesterer submitted in support of her motion was “arbitrary, and
speculative.” Again, Riesterer responds that Porter and MPORT did not meet their
burden under Civ.R. 56 to set forth specific facts showing that a genuine issue remained
for trial.
{¶ 29} Generally, the appropriate measure of damages for the breach of a
construction contract is the cost to repair the deficient work, i.e., the cost of putting the
building in the condition the parties contemplated at the time they entered into the
contract. Landis v. William Fannin Builders, Inc., 193 Ohio App.3d 318, 2011-Ohio-
1489, 951 N.E.2d 1078, ¶ 31 (10th Dist.), citing Hansel v. Creative Concrete & Masonry
Constr. Co., 148 Ohio App.3d 53, 59, 772 N.E.2d 138 (10th Dist.2002); and Barton v.
Ellis, 34 Ohio App.3d 251, 255, 518 N.E.2d 18 (10th Dist.1986). To be entitled to
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summary judgment on the issue of damages, a plaintiff must present evidence that shows
with some certainty the amount of damages that she suffered, although she is not required
to demonstrate the amount of damages with absolute precision. See Quest Workforce
Solutions, LLC v. Job1USA, Inc., 2018-Ohio-3304, 119 N.E.3d 817, ¶ 16 (6th Dist.).
{¶ 30} Here, Riesterer relied on five items to support her damages claim: (1)
Request No. 6 of the requests for admission; (2) the affidavit of Anthony Schaefer, her
construction expert; (3) the “Inspection Checklist” that was apparently prepared by
Riesterer’s attorneys and that Schaefer completed during his inspection of Riesterer’s
condominium; (4) a two-page document attached to Schaefer’s affidavit that includes his
“observations and conclusion” from his inspection of the property and a “preliminary
proposal to fix what is wrong with the work and finish what haven’t [sic] even been
started yet” at a total cost of $27,755; and (5) her own affidavit in which she concurs with
Schaefer’s findings and proposed repairs. However, the information in these documents,
when construed most strongly in favor of Porter and MPORT, does not meet the level of
certainty necessary to show that no questions remain for trial.
{¶ 31} First, Schaefer’s “preliminary proposal” for repairs does not clearly show
how MPORT’s admitted breach of the renovation contract resulted in $27,755 of
damages. Although Schaefer included a laundry list of tasks that must be completed at
the condominium and gave the lump sum of $27,755 as his “preliminary” estimate of
what it would cost of complete the renovations, he did not explain how he arrived at the
cost of $27,755—for example, by providing costs for the individual items needed for the
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condominium or explaining how much of his estimate was for materials and how much
was for labor. Compare Suder-Benore Co., Ltd. v. Motorists Mut. Ins. Co., 2013-Ohio-
3959, 995 N.E.2d 1279, ¶ 41 (6th Dist.) (expert’s opinion on damages was not
impermissibly conclusory when the expert described his examination of the site and
explained the methods and rationale underlying his estimates of material and labor costs).
Schaefer’s estimate also included at least one item (installing end caps on baseboard
heaters) that does not seem related to any of the remodeling tasks outlined in the October
2016 proposal.
{¶ 32} Additionally, there is some inconsistency between the items that Porter and
MPORT were deemed to have admitted by failing to respond to Riesterer’s requests for
admission and the incomplete and substandard work that Schaefer noted on the
“Inspection Checklist.” For example, by failing to respond to the requests for admission,
Porter and MPORT admitted in Request No. 6 that they “failed to perform work and / or
failed to do so in a workmanlike manner below industry standards * * *” by failing to
“install tile grout properly[,]” but Schaefer rated the grout work at the condominium as a
“2” on the 5-point scale in the inspection checklist (on which 1 meant that Schaefer
“Strongly Disagree[d]” with Riesterer’s assessment of MPORT’s work and 5 meant that
he “Strongly Agree[d]” with her), and included the comment that the “[g]rout work is not
too bad but has not been clean[ed] up properly.” Similarly, despite Schaefer and
MPORT’s admission to failing to “complete installation of light fixtures[,]” Schaefer
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rated the lights’ installation as a “2,” saying that the “[c]an lights have been installed but
trim piece around them have not been installed.”
{¶ 33} Taken together, these issues with Schaefer’s estimate of Riesterer’s
damages raise genuine issues of material fact for trial, and the trial court erred by
granting Riesterer’s motion for summary judgment on the issue of damages.
{¶ 34} And, like with the first assignment of error, Riesterer’s argument that the
trial court correctly granted summary judgment because Porter and MPORT did not
submit any Civ.R. 56(C) evidence in response to her motion for summary judgment is
unavailing. Riesterer’s evidence in support of her claim for damages, standing alone,
does not demonstrate that there are no issues of fact for trial, so Porter and MPORT’s
reciprocal duty under Civ.R. 56(E) to respond with “specific facts showing that there is a
genuine issue for trial” never arose. Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264;
Riley, 11 Ohio St.3d at 79, 463 N.E.2d 1246; Lakeview Loan Servicing, 6th Dist. Lucas
No. L-14-1242, 2016-Ohio-2978, at ¶ 27. Thus, Riesterer’s argument against Porter and
MPORT’s second assignment of error lacks merit.
{¶ 35} Because there are genuine issues of material fact regarding Riesterer’s
damages, the trial court erred in granting summary judgment on this issue. Therefore,
Porter and MPORT’s second assignment of error is well-taken.
III. Conclusion
{¶ 36} Based on the foregoing, the portions of the February 17, 2021 decision of
the Erie County Court of Common Pleas granting summary judgment against Porter
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personally and awarding damages are reversed and remanded because questions of fact
remain for trial. On remand, the trial court shall conduct further proceedings on the issue
of Porter’s personal liability for breach of contract, and the amount of damages that
MPORT and/or Porter, if personally liable, owe on the breach.
{¶ 37} Riesterer is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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