Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Mark J. Vanrooy
ATTORNEYS FOR APPELLEES For Flemco, L.L.C. And Carter Jones
Lumber, D.B.A. Carter Lumber Daniel J. Funk
Bayview Loan Servicing, Inc. Jennie L. Church
Cuyahoga County Treasurer Michael O'Malley Cuyahoga
County Prosecutor By: Michael Kenny Assistant Prosecuting
Attorney - Tax Foreclosure
Department of the Treasury Department of the Treasury United
States Attorney General U.S. Department of Justice
Ohio Department of Taxation and For State of Ohio Department
of Job & Family Services Mike DeWine Ohio Attorney
State of Ohio Bureau of Workers' Compensation Mike DeWine
Ohio Attorney General Bureau of Workers' Compensation
BEFORE: Keough, J., Kilbane, P.J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, J.
Defendant-appellant 12307 St. Clair Ltd. a.k.a. Express Gas
and Food ("St. Clair") appeals from the trial
court's judgment that adopted and approved the
magistrate's decision granting summary judgment to
plaintiffs-appellees Flemco L.L.C. ("Flemco") and
Carter Jones Lumber Company d.b.a. Carter Lumber Company
("Carter Lumber") on their mechanics' liens. We
reverse and remand.
Facts and Procedural Background
In August 2011, St. Clair and Flemco entered into a
construction contract whereby Flemco agreed to construct an
addition to St. Clair's existing commercial property in
Cleveland. As itemized in the contract, Flemco was to
construct a foundation; install a concrete slab and concrete
blocks; install framing, insulation, drywall, roof trusses, a
roof, a steel door, gutters, and downspouts; provide framing
for two new restrooms in the existing building, relocate
existing electric and gas services, and remove and haul away
all debris from the site upon completion. The work was to be
performed in conformance with drawings and plans provided by
architect Kevin Moran. The agreed contract price was $43,
000; St. Clair made an advance payment of $12, 000 to Flemco.
Flemco began work at the site in December 2011. St. Clair
asserts that it terminated the contract shortly thereafter
because Flemco deviated from the architect's plans,
thereby breaching the contract, and that it was forced to
complete the project with other contractors.
In June 2012, Flemco filed an affidavit for mechanics'
lien with the Cuyahoga County recorder, asserting that St.
Clair owed it $26, 750 for labor and materials furnished from
December 18, 2011 through April 12, 2012 pursuant to the
In May 2015, Flemco filed a complaint against St. Clair for
foreclosure of its mechanics' lien. It also asserted
claims for breach of contract and unjust enrichment. St.
Clair answered the complaint and asserted counterclaims for
breach of contract and unjust enrichment. The matter was
referred to a court magistrate.
In February 2016, the trial court dismissed Flemco's
complaint without prejudice for Flemco's failure to
prosecute its claims. The court subsequently granted
Flemco's motion for reconsideration and reinstated the
case. Noting that Flemco's original complaint had failed
to name all lien holders as defendants, the court ordered
Flemco to file an amended complaint listing all lien holders
identified in the preliminary judicial report, stating that
Flemco's failure to do so "will" result in
dismissal without prejudice.
In March 2016, Flemco filed an amended complaint for
declaratory judgment and foreclosure of its lien. Unlike its
original complaint, it did not also assert claims for breach
of contract or unjust enrichment. St. Clair answered the
amended complaint asserting various affirmative defenses but
In July 2016, Flemco filed a motion for summary judgment for
foreclosure of its lien against St. Clair. Flemco asserted
that there were no genuine issues of material fact that it
was entitled to judgment because it ...