FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CV 2016-11-5009
CURTIS ALBERTI, Attorney at Law, for Appellant.
JEFFREY S. MAYNARD, Attorney at Law, for Appellee.
J. WILLIAMS, Attorney at Law, for Appellee.
L. ANTEL, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
A. TEODOSIO J.
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.
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.
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.
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
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.
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.
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).
The Supreme Court of Ohio has set forth the nature of this
[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 ...