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Opincar v. F.J. Spanulo Construction

December 4, 2008

THOMAS OPINCAR, ET AL. PLAINTIFFS-APPELLANTS
v.
F.J. SPANULO CONSTRUCTION DEFENDANT-APPELLEE



Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-623450, JUDGMENT: AFFIRMED.

The opinion of the court was delivered by: Sean C. Gallagher, J.

JOURNAL ENTRY AND OPINION

BEFORE: Gallagher, J., Cooney, P.J., and Stewart, J.

{¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records, and briefs of counsel.

{¶2} Appellants, Thomas and Melanie Opincar (collectively "the Opincars"), appeal the judgment of the Cuyahoga County Court of Common Pleas that granted summary judgment in favor of appellee, F.J. Spanulo Construction ("Spanulo"). For the reasons stated herein, we affirm.

{¶3} The Opincars hired Spanulo to perform excavation and concrete work for a garage addition on their property. After the garage addition was built, Dominion East Ohio Gas Company informed the Opincars that the garage addition was built over a gas line and that it needed to be removed. The Opincars had to demolish and remove the garage addition.

{¶4} The Opincars filed a complaint against Spanulo on May 4, 2007, raising claims of negligence and breach of contract. Under their negligence claim, the Opincars asserted that Spanulo failed to contact the Ohio Utility Protection Service ("OUPS") prior to beginning excavation. They also alleged that Spanulo continued to perform the excavation and concrete work after receiving actual notice of the presence of the gas line. They claimed they suffered damages as a result of Spanulo's "failure to perform its work in a workmanlike manner by failing to contact OUPS prior to excavation." Under their breach of contract claim, the Opincars generally alleged that Spanulo failed to perform its obligations in a workmanlike manner.

{¶5} The Opincars moved for partial summary on the issue of negligence per se. They argued that Spanulo was negligent per se because, before beginning any excavation process, Spanulo was required, but failed, to contact OUPS to locate an underground utility pursuant to R.C. 3781.25, et seq. They further argued that Spanulo's failure was a breach of contract in that it constituted a failure to perform in a workmanlike manner. Spanulo opposed the motion and filed its own motion for summary judgment asserting that the Opincars, as owners and general contractors, were required to notify OUPS prior to excavation pursuant to R.C. 3781.27 and that the obligation to make sure the garage addition was not placed over an underground utility was that of the Opincars. Spanulo further argued in its own motion that it had no obligation to locate underground utilities and had performed the work required under the contract. The trial court denied the Opincars' motion for partial summary judgment, and granted summary judgment in favor of Spanulo.

{¶6} The Opincars filed this appeal, raising four assignments of error for our review. The Opincars' first assignment of error provides as follows:

{¶7} "I. The trial court erred in dismissing the Opincars' claims for common law negligence and breach of contract where Spanulo only moved for summary judgment on the Opincars' negligence per se claim."

{¶8} It is well settled that "[a] party seeking summary judgment must specifically delineate the basis upon which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond." Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, syllabus. The Opincars argue that Spanulo's motion for summary judgment concerned only the OUPS statute and did not address the common law negligence and breach of contract claims. Our review reflects otherwise.

{¶9} The Opincars' complaint set forth claims for negligence and breach of contract. In moving for summary judgment, Spanulo asserted that the Opincars, as the general contractor, had the duty to determine the location of the underground utilities and provide that information to the excavator, that Spanulo had no obligation to locate the underground facilities, that any negligence was that of the Opincars, and that Spanulo had performed its work as required under the contract. Spanulo referenced deposition testimony establishing that Thomas Opincar was listed as the general contractor for the project and that the Opincars had engaged Vayda Architects Inc. to design and prepare the drawings for the garage addition. There was also evidence that the plans submitted by the Opincars to the city of Parma did not show the location of the gas line and that the Opincars did not notify OUPS prior to excavation. Spanulo also referenced the parties' contract and stated the work was performed consistent with the drawings. Our review of Spanulo's motion shows that it moved for summary judgment as to the entire complaint. Accordingly, the Opincars' first assignment of error is overruled.

{¶10} The Opincars' remaining assignments of error provides as follows:

{ΒΆ11} "II. The trial court erred in finding the Opincars solely responsible for contacting the Ohio Utilities Protection Service pursuant to R.C. 3781.25 and thereby deciding and allocating fault among the parties, ...


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