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R. C. Costello & Assoc., Inc v. Energy Technologies, Inc.

Court of Appeals of Ohio, Fifth District, Richland

May 25, 2018

R. C. COSTELLO & ASSOC., INC. Plaintiff-Appellee
v.
ENERGY TECHNOLOGIES, INC., et al Defendants-Appellants

          Appeal from the Court of Common Pleas, Case No. 17-CV-0037 R

          For Plaintiff-Appellee ALEXANDER V. DATTILO

          For Defendants-Appellants BENEJAMIN D. KITZLER

          JUDGES: Hon. John W. Wise, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Wise, E. 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., Inc. (Costello).

         FACTS 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 industries.

         {¶ 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 judgment.

         {¶ 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 time.

         {¶ 8} On September 26, 2017, Costello filed a reply to ETI's motion and memorandum contra and a motion to strike ...


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