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Flemco, LLC v. 12307 St. Clair, Ltd.

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 15, 2018

FLEMCO, LLC PLAINTIFF-APPELLEE
v.
12307 ST. CLAIR, LTD., A.K.A. EXPRESS GAS AND FOOD DEFENDANT-APPELLANT

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-845301

          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

          For Bayview Loan Servicing, Inc. Jennie L. Church

          For Cuyahoga County Treasurer Michael O'Malley Cuyahoga County Prosecutor By: Michael Kenny Assistant Prosecuting Attorney - Tax Foreclosure

          For Department of the Treasury Department of the Treasury United States Attorney General U.S. Department of Justice

          For Ohio Department of Taxation and For State of Ohio Department of Job & Family Services Mike DeWine Ohio Attorney General

          For 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.

         {¶1} 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.

         I. Facts and Procedural Background

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 contract.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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 no counterclaims.

         {¶8} 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 ...


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