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Campbell v. George J. Igel & Co., Inc.

Court of Appeals of Ohio, Fourth District

August 14, 2013

WILLIAM M. CAMPBELL, Plaintiff-Appellant,
v.
GEORGE J. IGEL & CO., INC., Defendant-Appellee.

Abigail M. Saving, Lilley & Saving Co., L.P.A., Logan, Ohio, for Plaintiff-Appellant.

Christopher J. Weber, Kegler, Brown, Hill & Ritter, LPA, Columbus, Ohio, for Defendant-Appellee.

DECISION AND JUDGMENT ENTRY

Marie Hoover, Judge

(¶ 1} Plaintiff-appellant, William M. Campbell ("appellant"), appeals from the judgment of the Hocking County Court of Common Pleas that granted the motion for summary judgment of defendant-appellee, George J. Igel & Co., Inc. ("appellee"), as to the appellant's claim for breach of contract. For the reasons set forth below, we reverse the judgment of the trial court and remand for further proceedings.

(¶ 2} Appellant raises two assignments of error for review. First Assignment of Error:

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.
Second Assignment of Error:
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DENIED PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT.

(¶ 3} The record reveals the following facts and procedural history. Appellant owns real property at 19577 State Route 664, Logan, Ohio (the "Property"). In the summer of 2011, the Ohio Department of Transportation ("ODOT") was preparing a construction project to realign State Route 664 adjacent to Old Man's Cave State Park (the "Project"). On June 20, 2011, a representative of appellee, Jon Pulcheon, met with appellant to inform him that appellee intended to submit a bid on the Project. That same day, appellant and appellee executed a Construction Site Agreement (the "Agreement"). Mr. Pulcheon presented the Agreement, which appears to be a pre-printed form contract with certain additional handwritten terms, to appellant.

(¶ 4} Under the terms of the Agreement, appellant gave appellee "permission to establish a staging area [on the Property] for basing operations associated with the construction project including storage of materials, equipment and other pertinent items of work." The Agreement also gave appellee "the right of ingress and egress to the [P]roperty in locations selected by the [appellee] for all purposes necessary to complete the fulfillment of this agreement."

(¶ 5} In exchange for the permission to use the Property, appellee agreed to "place [an] embankment [of] approx. 120, 000 cy [cubic yards], " to "strip and replace topsoil, " to "grade and seed all disturbed areas, " to "provide positive drainage as needed, " and to "place aggregate up to the building site." The Agreement also contains a provision labeled "Lump Sum Payment $50, 000.00, " requiring appellee to pay appellant Twenty-Five Thousand Dollars ($25, 000.00) "at start, " and Twenty-Five Thousand Dollars ($25, 000.00) "upon completion and acceptance."

(¶ 6} After the parties executed the Agreement, appellee submitted its bid to ODOT and was awarded the Project in July 2011. In January 2012, appellee notified appellant that it would not be using the Property to stage its operations on the Project or to dump fill dirt excavated from the Project site. Appellee then proceeded to dump fill dirt from the Project on property owned by the State of Ohio. The Property was never used, nor was it ever disturbed during appellee's completion of the Project. Appellee never paid the Fifty Thousand Dollars ($50, 000.00) to appellant.

(ΒΆ 7} Appellant filed a complaint in the Hocking County Court of Common Pleas against appellee for breach of contract alleging damages of Fifty Thousand Dollars ($50, 000.00), plus interest and costs. Appellee filed a motion for judgment on the pleadings. Appellant responded with a memorandum contra and a motion for summary judgment. The trial court converted appellee's motion for judgment on the pleadings to a motion for summary judgment. The trial court ultimately entered judgment on January 4, 2013, overruling appellant's motion for summary judgment and sustaining appellee's motion for summary judgment. The trial court found, inter alia, that a "review of the language of the contract leads to the ...


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