Court of Appeals of Ohio, Fifth District, Richland
R. C. COSTELLO & ASSOC., INC. Plaintiff-Appellee
ENERGY TECHNOLOGIES, INC., et al Defendants-Appellants
from the Court of Common Pleas, Case No. 17-CV-0037 R
Plaintiff-Appellee ALEXANDER V. DATTILO
Defendants-Appellants BENEJAMIN D. KITZLER
JUDGES: Hon. John W. Wise, P.J. Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
1} Defendant-appellant Energy Technologies, Inc., et al.
(ETI), appeals the November 17, 2017 judgment of the Richland
County Court of Common Pleas striking appellant's motion
for summary judgment, and granting appellee's motion for
summary judgment. Appellee is R.C. Costello & Assoc.,
AND PROCEDURAL HISTORY
2} Appellant Dan Madden of ETI, during the course of this
proceeding, was the principal of an Ohio company seeking
investment funding in order to create a process for reforming
hydrogen using a base facilitated system. Appellee Costello
is a California company which provides engineering design and
construction supervisions to the chemical and biofuels
3} According to Costello's January 10, 2017 complaint, in
February 2015, Madden, contacted Costello on behalf of ETI to
request Costello perform various tasks and projects for
ETI's use in an effort to attract a particular client.
Costello built five computer programs (ChemCad Models) for
ETI, assisted with one of ETI's PowerPoint presentations,
and participated in a presentation for ETI's potential
client. For these services, Costello billed ETI $16, 930 and
ETI refused to pay. Costello alleged breach of implied
contract, unjust enrichment, and restitution.
4} ETI filed an answer on February 2, 2017 denying the
allegations contained in Costello's complaint.
5} On August 31, 2017, Costello filed a motion for summary
6} On September 19, 2017, ETI filed a memorandum contra to
summary judgement and a motion for summary judgment.
According to ETI, Costello was asked to provide an estimate
of the cost of preliminary engineering for the project and
nothing more as ETI had yet to acquire funding for the
project. The hiring of Costello, according to ETI, was
contingent on the acquisition of funding for the project.
Costello provided ETI with a contract, but ETI never signed
the same, and claimed no work was requested of Costello
beyond the preparation of an estimate. ETI further claimed
that Costello never provided any services or benefit to ETI.
7} ETI's motion for summary judgment was filed out of
time, and without leave of the trial court to file out of
8} On September 26, 2017, Costello filed a reply to ETI's
motion and memorandum contra and a motion to strike ...