APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 11 CVF 05396.
DANIEL S. WHITE, Attorney at Law, for Appellant.
MARK A. GREER, JAMIE A. PRICE and MARK D. THOMPSON, Attorneys at Law, for Appellee.
R.S. HALEY, Attorney at Law, for Appellee. E. MARK YOUNG, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
DONNA J. CARR, J.
(¶1} Appellant Emil Stewart appeals the judgment of the Akron Municipal Court that granted summary judgment in favor of Depth Construction. This Court reverses and remands.
(¶2} On June 20, 2011, Mr. Stewart filed a complaint against Depth Construction, alleging that the business had breached the terms of the contractor warranty with regard to work performed by the company on Mr. Stewart's property. "Depth Construction" filed an answer, denying the allegations in the complaint and raising numerous affirmative defenses. "Depth Construction" did not, however, raise the affirmative defense that Mr. Stewart was attempting to sue a non-entity. In addition, the sole named defendant continued to defend itself in the name of "Depth Construction." For example, Depth Construction filed a Notice of Service of Defendant's First Set of Requests for Productions of Documents and Interrogatories to Plaintiff Emil Stewart, and a Notice of Service of Defendant's Responses to Plaintiffs First Set of Interrogatories Propounded to the Defendant. In addition, Depth Construction filed a motion for leave to file a third-party complaint. After the trial court granted leave, Depth Construction filed a third-party complaint against Crano Excavating and P.R.A.C, seeking contribution and indemnification by those two companies. Crano Excavating filed an answer, while P.R.A.C. moved to dismiss pursuant to Civ.R. 12(B)(6). Depth Construction filed a brief in opposition to P.R.A.C.'s motion to dismiss. The trial court denied P.R.A.C.'s motion to dismiss on the merits and ordered that company to file an answer to Depth Construction's third-party complaint within fourteen days.
(¶3} After the case had pended before the trial court for just under a year, the defendant, in the name of Robert Belknap dba Depth Construction, filed a motion for summary judgment on Mr. Stewart's complaint, for the first time arguing that Depth Construction was a sole proprietorship without capacity to be sued and that Mr. Stewart's claims were discharged as a result of Mr. Belknap's personal bankruptcy. The trial court initially ordered the motion for summary judgment stricken from the record because it was filed without leave, but later granted leave to the defendant to file the motion. Mr. Stewart filed a brief in opposition to the motion and the defendant replied. The trial court granted the defendant's motion for summary judgment upon finding that Depth Construction was a sole proprietorship through Mr. Belknap and, therefore, was not a legal entity that could be sued; and that Mr. Belknap's bankruptcy proceedings discharged any debt underlying Mr. Stewart's lawsuit. In addition, the trial court dismissed without prejudice Depth Construction's third-party complaint against Crano Excavating and P.R.A.C, not because Depth Construction was not a legal entity that had no capacity to sue, but because it found that the third-party complaint was derivative of the outcome of Mr. Stewart's complaint on which it had rendered judgment in favor of Mr. Belknap. Mr. Stewart filed a timely appeal in which he raises one assignment of error for review.
ASSIGNMENT OF ERROR
THE TRIAL COURT'S DECISION TO GRANT SUMMARY JUDGMENT IN FAVOR OF THE APPELLEE DEPTH CONSTRUCTION CONSTITUTES REVERS[I]BLE ERROR.
(¶4} Mr. Stewart argues that the trial court erred by granting summary judgment in favor of Depth Construction. This Court agrees.
(¶5} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving ...