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Velocity Construction Services, LLC v. Ohio State University

Court of Claims of Ohio

July 29, 2019

VELOCITY CONSTRUCTION SERVICES, LLC. Plaintiff/Counter Defendant
v.
THE OHIO STATE UNIVERSITY Defendant/Counter Plaintiff

          Sent to S.C. Reporter 8/15/19

          DECISION OF THE REFEREE

          DALE A. CRAWFORD REFEREE

         {¶1} This case is before the Court on a complaint brought by Plaintiff/Counter Defendant Velocity Construction Services (Velocity) for breach of contract and unjust enrichment. Defendant/Counter Plaintiff Ohio State University (OSU) filed a counterclaim alleging breach of contract, breach of express warranties, and fraud. On June 12, 2019, OSU moved for summary judgment on the liability portion of its counterclaim for fraud. Velocity did not file a response, and the Referee considers the motion unopposed. For the reasons set forth below, the Referee recommends the court grant OSU's motion.

         Standard of Review

         {¶2} Motions for summary judgment are reviewed under the standard set forth in Civ.R. 56(C), which states, in part:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

         "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of material fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). To meet this initial burden, the moving party must be able to point to evidentiary materials of the type listed in Civ.R. 56(C). Id. at 292-293.

         {¶3} If the moving party meets its initial burden, the nonmoving party bears a reciprocal burden outlined in Civ.R. 56(E), which states, in part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.

         Factual Background

         {¶4} This case involves three separate contracts between Velocity and OSU for construction projects on buildings owned by OSU. (Velocity Complaint at ¶ 2-4; OSU Counterclaim at ¶ 3, 5.) The parties entered into the contracts through purchase order agreements. (Velocity Complaint at ¶ 1-4; OSU Counterclaim at ¶ 5.) The first contract was for the renovation of the ballroom in Lawrence Tower, which primarily involved the design and installation of a new ceiling grid and ceiling tiles along with new lighting and controls (Lawrence Tower Project). (Velocity Complaint at ¶ 10; OSU Counterclaim at ¶ 8.) The second contract was for the installation of replacement windows in Fechko House, including the installation of new window frames and trim. (Fechko Window Project). (Velocity Complaint at ¶ 11; OSU Counterclaim at ¶ 23, Ex. B.) The third contract was for renovation of the heating, ventilating, and air conditioning (HVAC) system in Fechko House (Fechko HVAC Project). (Velocity Complaint at ¶ 12; OSU Counterclaim at ¶ 43, Ex. C.) All three contracts were terminated before any of the projects were completed. (Velocity Complaint at ¶ 26, 32, 41; OSU Counterclaim at ¶ 18, 39, 66.) The parties' respective pleadings offer competing accounts of the events leading up to the terminations.

         {¶5} On February 15, 2019, OSU served Velocity with a set of discovery requests, including a request for admissions. Velocity failed to respond to the request for admissions, despite the fact that OSU agreed to multiple extensions of Velocity's response deadline. Consequently, the Referee deemed the matters set forth in the requests for admissions to be admitted pursuant to Civ.R. 36(A)(1). (Order of the Referee, July 12, 2019.) As a result, the following facts are in evidence:

(1) Velocity was required to use new material on the Lawrence Tower Project.
(2) Velocity, and/or its subcontractors, installed work on the Lawrence Tower Project which did not use new material, ...

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