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Pursuit Commercial Door Solutions, Inc. v. Roce Group LLC

Court of Appeals of Ohio, Ninth District, Summit

August 14, 2019

PURSUIT COMMERCIAL DOOR SOLUTIONS, INC. Appellant
v.
ROCE GROUP LLC Appellee

          APPEAL 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, for Appellant.

          MICHAEL R. STAVNICKY, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          TEODOSIO, Presiding Judge.

         {¶1} 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.

         I.

         {¶2} 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.

         {¶3} 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 lien.

         {¶4} Pursuit now appeals, raising one assignment of error.

         II.

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 "

         {¶5} 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.

         {¶6} 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 ...


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