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Bennett v. American Electric Power Service Corp.

September 27, 2001

BRUCE H. BENNETT ET AL., PLAINTIFFS-APPELLANTS,
v.
AMERICAN ELECTRIC POWER SERVICE CORPORATION, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Deshler, J.

(REGULAR CALENDAR)

DECISION

APPEAL from the Franklin County Court of Common Pleas.

Plaintiffs-appellants Bruce H. Bennett, Claude William Frishette, II, and Michael Bahleda, appeal from a judgment of the Franklin County Court of Common Pleas granting summary judgment for defendant-appellee, American Electric Power Service Corporation ("AEP").

Appellants initiated this action seeking rescission of a contract assigning to AEP their rights in a patented product and process known under the trademarked name Flash Fill. AEP answered asserting that the assignment was enforceable, and in addition brought a counterclaim for indemnification.

The matter was decided by the trial court on cross-motions for summary judgment. The trial court found that various letters exchanged between the parties and agreements entered into between the parties constituted a binding contract, that AEP had not breached the contract of assignment, and that even if breach were shown, appellants had so delayed bringing their action that rescission was no longer an appropriate remedy. The trial court therefore entered judgment in favor of AEP on appellants' claims. AEP voluntarily dismissed its counterclaim without prejudice.

Appellants have timely appealed and bring the following assignments of error:

ASSIGNMENTS OF ERROR:

1. THE TRIAL COURT ERRED IN FINDING THAT THE SEPTEMBER 11, 1990, LETTERS ARE THE CON-TROLLING AGREEMENTS[.]

2. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT/APPELLEE WAS NOT IN BREACH OF THE ASSIGNMENT[.]

3. THE TRIAL COURT ERRED IN FINDING THAT RECISION [sic] WAS NOT AN APPROPRIATE REMEDY FOR PLAINTIFFS/APPELLANTS[.]

4. THE TRIAL COURT ERRED IN GRANTING DEFENDANT/APPELLEE'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLANTIFFS/APPELLANTS' MOTION FOR SUMMARY JUDGMENT[.]

Appellants' four assignments of error present interrelated issues and will be addressed together. The present matter was decided on summary judgment. Civ.R. 56(C) states that summary judgment shall be granted if:

*** [T]he pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ***

Accordingly, summary judgment is appropriate only where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 629, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. "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 which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Once the moving party meets its initial burden, the non-movant must then produce competent evidence showing that there is a genuine issue for trial.

Appellate review of summary judgments is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588; Midwest Specialties, Inc. v. Firestone Tire & Rubber Co. (1988), 42 Ohio App.3d 6. We stand in the shoes of the trial court and conduct an independent review of the record. As such, we must affirm the trial court's judgment if any of the grounds raised by the movant at the trial court are found to support it, even if the trial court failed to consider those grounds. Dresher, supra; Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38.

The following facts can be taken as essentially uncontested for purposes of summary judgment. The three appellants, along with Gary Jablonski and Paul Stodola, who are not parties to this suit, collectively participated in the invention of Flash Fill, a rapid-setting backfill composition derived from naturally cementitious fly ash produced by AEP's electric power generation facilities. Flash Fill presents advantages in backfilling, inter alia, utility trenches, and presents the additional advantage of utilizing fly ash which would have to be otherwise disposed of. During the period when Flash Fill was invented and patented, the co-inventors were employees of AEP. As part of their employment contract, each had signed the "Employee Patent and Confidential Information Agreement," under which employees were ...


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