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Hornacek v. Madenfort

Court of Appeals of Ohio, Fifth District, Stark

December 9, 2019

CHRIS HORNACEK Plaintiff-Appellant
v.
MITCHELL MADENFORT, ET AL. Defendants-Appellees

          Appeal from the Court of Common Pleas, Case No. 2018CV00277

         JUDGMENT: Affirmed

          For Plaintiff-Appellant DARREN W. DEHAVEN

          For Defendants-Appellees RONALD K. STARKEY ADAM M. RUNKLE

          Hon. William B. Hoffman, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Wise, Earle, J.

         {¶ 1} Plaintiff-Appellant, Chris Hornacek, appeals the March 18, 2019 judgment entry of the Court of Common Pleas of Stark County, Ohio, granting summary judgment to Defendant-Appellee, Madenfort Excavating, Ltd.

         FACTS AND PROCEDURAL HISTORY

         {¶ 2} On or about August 3, 2017, the parties verbally agreed that Mitchell Madenfort and appellee would sell an excavator to appellant for $40, 000. The excavator was to be delivered in November or December, 2017. At some point, the excavator was sold to a third party, Ohio CAT.

         {¶ 3} On February 22, 2016, appellant filed a complaint against Mr. Madenfort and appellee, claiming breach of agreement and promissory estoppel. The case was referred to mediation which was unsuccessful.

         {¶ 4} On February 8, 2019, Mr. Madenfort and appellee filed a motion for summary judgment, claiming statute of frauds (R.C. 1302.04), neither party fell under the "merchant" exception of the statute, and promissory estoppel was inapplicable. In an opposition memorandum filed February 22, 2019, appellant removed Mr. Madenfort as a party as well as the claim for promissory estoppel. By judgment entry filed March 18, 2019, the trial court granted summary judgment to appellee.

         {¶ 5} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:

         I

         {¶ 6} "THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT ...


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