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AKC, Inc. v. United Speciality Insurance Co.

Court of Appeals of Ohio, Ninth District, Summit

July 10, 2019

AKC, INC., dba CLEANTECH Appellant


          JOHN CURTIS ALBERTI, Attorney at Law, for Appellant.

          JEFFREY S. MAYNARD, Attorney at Law, for Appellee.

          ERIC J. WILLIAMS, Attorney at Law, for Appellee.

          JOHN L. ANTEL, Attorney at Law, for Appellee.



         {¶1} AKC, Inc., dba CleanTech, assignee of Globalcor Associates, L.L.C. ("AKC"), appeals the order of the Summit County Court of Common Pleas granting summary judgment in favor of United Specialty Insurance Company ("United") and Cilantro Thai, Inc. ("Cilantro"). We reverse and remand.


         {¶2} AKC is a corporation engaged in the cleaning and casualty restoration business that was assigned a claim for damages from Globalcor Associates, LLC, dba Bank Nightclub. The damages stemmed from an insurance claim for sanitary sewer backup and cleaning and restoration costs at the Bank Nightclub in Akron, Ohio. In November 2016, AKC filed its complaint alleging breach of contract against United and negligence against two restaurant businesses: Cilantro, and USAFA, LLC, dba Bricco. AKC alleged that the two restaurants adjoining the Bank Nightclub had been negligent in causing the sewer backup by dumping cooking grease into their sanitary drain lines, which connected to a common drain line used by Globalcor.

         {¶3} The complaint also alleged that Globalcor was instructed by its insurer, United, to proceed with the immediate clean-up of the sewage in order to prevent further damage. Subsequently, Globalcor contacted AKC to perform the clean-up and restoration, which was completed in December 2014. After the completion of the work, United informed Globalcor that it was denying the insurance claim because the damage was excluded by provisions of the existing insurance policy. In March 2015, Globalcor assigned its claim for damages to AKC. In its complaint, AKC alleged that United committed a breach of contract in denying the claim.

         {¶4} All three defendants filed motions for summary judgment on the claims made against them by AKC, with the trial court granting summary judgment in favor of all three defendants in September 2018. AKC now appeals raising two assignments of error.


         {¶5} As a preliminary matter, we address two motions presently before this Court. First is Cilantro's motion to strike "Issue No. 6" of AKC's reply brief. In its reply brief to this Court, AKC raises an argument not contained within the appellant's brief filed in this matter. Loc.R. 7(D) provides that reply briefs shall be restricted to matters in rebuttal of the appellee's brief. Because "Issue No. 6" of the reply brief raises a new argument that is not restricted to a matter of rebuttal, it is hereby stricken from the record.

         {¶6} The second motion before this Court is AKC s motion to dismiss its appeal with prejudice as to USAFA, LLC, dba Bricco. The motion is granted and USAFA, LLC, dba Bricco is dismissed from this appeal with prejudice.


         {¶7} Appellate review of an award of summary judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56 when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing Civ.R. 56(C). A court must view the facts in the light most favorable to the non-moving party and must resolve any doubt in favor of the non-moving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359 (1992). A trial court does not have the liberty to choose among reasonable inferences in the context of summary judgment, and all competing inferences and questions of credibility must be resolved in the nonmoving party's favor. Perez v. Scripps-Howard Broadcasting Co., 35 Ohio St.3d 215, 218 (1988).

         {¶8} The Supreme Court of Ohio has set forth the nature of this burden-shifting paradigm:

[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a ...

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