PURSUIT COMMERCIAL DOOR SOLUTIONS, INC. Appellant
ROCE GROUP LLC Appellee
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CV-2016-11-4979
MICHAEL L. FORTNEY and MICHAEL R. FORTNEY, Attorneys at Law,
MICHAEL R. STAVNICKY, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
TEODOSIO, Presiding Judge.
Pursuit Commercial Door Solutions, Inc. ("Pursuit")
appeals the judgment of the Summit County Court of Common
Pleas granting summary judgment in favor of ROCE Group, LLC
("ROCE"), on Pursuit's claim for the
foreclosure of a mechanic's lien. We reverse and remand.
In 2015, ROCE, the owner of real property in Stow, Ohio,
hired Moosally Construction, Inc. ("Moosally") to
construct the Fairfield Inn & Suites Hotel. Moosally
hired Pursuit to perform work involving the installation of
doors, door frames, and related hardware. On May 6, 2015,
ROCE filed a notice of commencement with the Summit County
Fiscal Office. On September 10, 2015, Pursuit served a notice
of furnishing on Metro City Bank and attempted to serve the
same on ROCE at the address listed on its notice of
commencement. Pursuit first supplied materials or labor to
the project on October 17, 2015. Pursuit alleged that
Moosally failed to pay Pursuit's invoices, and on July
11, 2016, Pursuit recorded a mechanic's lien.
In November 2016, Pursuit filed its complaint against
multiple defendants, including Moosally and ROCE, with its
sole claim against ROCE being the foreclosure of the
mechanic's lien. ROCE filed a cross-claim against
Moosally and a counterclaim against Pursuit. On February 22,
2018, the trial court ruled on motions for summary judgment,
including granting summary judgment in favor of ROCE on
Pursuit's claim for foreclosure on its mechanic's
Pursuit now appeals, raising one assignment of error.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN CONCLUDING THAT A SUBCONTRACTOR ON A
COMMERCIAL CONSTRUCTION PROJECT MUST WAIT UNTIL AFTER IT
STARTS WORK BEFORE SERVING ITS NOTICE OF FURNISHING, DESPITE
THE EXPRESS LANGUAGE IN R.C. 1311.05 THAT THE NOTICE OF
FURNISHING MAY BE SERVED "AT ANY TIME AFTER THE
RECORDING OF THE NOTICE OF COMMENCEMENT . . . BUT WITHIN
TWENTY-ONE DAYS AFTER PERFORMING THE FIRST LABOR OR
WORK," AND DESPITE THE STATUTORY NOTICE OF FURNISHING
FORM IN R.C. 1311.05(B) REQUESTING A DATE THAT "WORK
WILL BE PERFORMED OR FURNISHED FIRST "
In its assignment of error, Pursuit argues the trial court
erred in concluding that Pursuit's notice of furnishing
was invalid because it was served prior to Pursuit performing
any labor or furnishing any materials. We agree.
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 ...