[Cite as Ingle-Barr, Inc. v. E. Local School Dist. Bd.,

.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PIKE COUNTY

INGLE-BARR, INC., : Plaintiff-Appellant, Case No. 10CA808 : 10CA809 vs. : EASTERN LOCAL SCHOOL DISTRICT DECISION AND JUDGMENT ENTRY BOARD, :

Defendant-Appellee. :

_________________________________________________________________

APPEARANCES:

COUNSEL FOR APPELLANT: Timothy G. Crowley., 150 East Wilson Bridge Road, Ste. 230, Worthington, Ohio 43085

Michael J. Fusco, Fusco, Mackey, Mathews & Gill, L.L.P., 655 Cooper Road, Westerville, Ohio 43081

COUNSEL FOR APPELLEE: Eric B. Travers, Kegler, Brown, Hill & Ritter, L.P.A., 65 East State Street, Ste. 1800, Columbus, Ohio 43215-4294

_________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALZIED: 1-27-11

ABELE, J.

{¶ 1} This is an appeal from two Pike County Common Pleas Court summary

judgments in favor of the Eastern Local School District Board (Eastern), defendant below and

appellee herein, on claims brought against it by Ingle-Barr, Inc. (Ingle-Barr), plaintiff below and

appellant herein. PIKE, 10CA808 & 10CA809 2

{¶ 2} Appellant assigns the following error for review:

“THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE EASTERN LOCAL SCHOOL DISTRICT BOARD’S MOTION TO DISMISS, TREATED AS A MOTION FOR SUMMARY JUDGMENT, AND DISMISSING WITH PREJUDICE PLAINTIFF-APPELLANT INGLE-BARR, INC.’S AMENDED COMPLAINT, AND, IN PARTICULAR, IN DETERMINING THAT DEFENDANT-APPELLEE ‘IS NOT A PARTY’ TO THE CONSTRUCTION CONTRACTS THAT ARE THE SUBJECT OF PLAINTIFF-APPELLANT’S AMENDED COMPLAINT IN THE TWO (2) CONSOLIDATED ACTIONS.”

{¶ 3} In 2002, Ingle-Barr entered a “Contractor Contract” with the State of Ohio, by and

through Eastern, to build “new athletic fields” for the school district. The next year it entered

into another “Contractor Contract” with the State of Ohio, also by and through Eastern, to make

improvements at Eastern High School.

{¶ 4} On January 9, 2006, Ingle-Barr commenced the instant actions against Eastern and

alleged breach of contract and unjust enrichment on both contracts. Eastern filed motions to

dismiss in both cases and argued, inter alia, that it was not a party to the contract and that

appellant must seek recompense from the State of Ohio in the Ohio Court of Claims.

{¶ 5} The trial court converted both motions to summary judgment and on February 22,

2010, issued its decision in favor of appellees. In particular, the court ruled that because both

contracts are between Ingle-Barr and the State of Ohio, and that Eastern is not a party, Eastern

could not be held liable for breach of contract. Thus, the court dismissed Ingle-Barr’s

complaints. Appellant appealed both dismissals and consolidated the two appeals. The matter PIKE, 10CA808 & 10CA809 3

is now before us for review.1

{¶ 6} In its sole assignment of error, Ingle-Barr asserts that Eastern did not adequately

demonstrate that it was entitled to summary judgment. Our analysis begins with the premise

that appellate courts review summary judgments de novo. Sutton Funding, L.L.C. v. Herres,

,

,

, at ¶59; Broadnax v. Greene Credit Service

(1997),

,

; Coventry Twp. v. Ecker (1995), 101 Ohio

App .3d 38, 41,

. In other words, we afford no deference whatsoever to the trial

court decision, Sampson v. Cuyahoga Metro. Hous. Auth.,

,

,

, at ¶19; Kalan v. Fox,

,

,

, at ¶13, and we will conduct an independent review to determine if summary

judgment is appropriate. Woods v. Dutta (1997),

,

; Phillips v. Rayburn (1996),

,

.

{¶ 7} Under Civ. R. 56(C), summary judgment is appropriate when a movant shows that

(1) no genuine issues of material fact exist, (2) he is entitled to judgment as a matter of law and

(3) after the evidence is construed most strongly in favor of the non-movant, reasonable minds

can come to one conclusion and that conclusion is adverse to the non-moving party. See

Kaminski v. Metal & Wire Prods. Co.,

,

,

; Zivich v. Mentor Soccer Club, Inc. (1998),

,

.

The moving party bears the initial burden to show that no genuine issues of material facts exist

and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996),

,

1 Our review of the exhibits and the parties' arguments indicate that Ingle-Barr has also filed suit against the State of Ohio in the Court of Claims. Apparently, that case has been stayed pending the outcome of this litigation. PIKE, 10CA808 & 10CA809 4

293,

; Mitseff v. Wheeler (1988),

,

. If

that burden is met, the onus shifts to the non-moving party to provide rebuttal evidentiary

materials. See Trout v. Parker (1991),

,

; Campco

Distributors, Inc. v.. Fries (1987),

,

.

{¶ 8} To begin, the face of the two contracts in the case sub judice specify that the

agreements are between Ingle-Barr “and the State of Ohio.” Although the word “agent” appears

nowhere in the opening paragraph of either contract, the clear language of those paragraphs limit

Eastern’s role to simply binding the State to those contracts with Ingle-Barr. Moreover, Eastern

filed an affidavit by Stephanie Knipp, President of the Eastern Local District School Board, who

attested that Eastern is not a party to the contract(s) and that she signed them “for the State of

Ohio.” Charles J. Shreve, Superintendent for Eastern, likewise attested that Eastern did not

enter “into the contract with Ingle-Barr.” This evidence is sufficient to carry Eastern’s initial

burden to show that they are not a party to the contracts. Consequently, Ingle-Barr had the

burden of rebuttal. We, however, find nothing in the record to show that Ingle-Barr carried that

burden. The affidavits submitted with Ingle-Barr’s memorandum contra do not challenge the

wording of the two contracts or the affiants attestations that the contracts are between Ingle-Barr

and the State of Ohio.

{¶ 9} It is axiomatic that those not a party to a contract cannot be held liable for a

breach of contract. See, generally, Cremeans v. Robbins (Jun. 12, 2000), Ross App. No.

99CA2520 (someone not a party to a contract cannot be held liable for rescission). In the absence

of evidence to show that Eastern is a party to the contracts, Ingle-Barr has no cause of action

against it and the trial court correctly entered summary judgment in Eastern's favor. PIKE, 10CA808 & 10CA809 5

{¶ 10} Interestingly, Ingle-Barr’s brief does not appear to actually contest Eastern’s

argument it is not a party to the contracts. Instead, Ingle-Barr raises a number of other

arguments. First, Ingle-Barr criticizes the trial court for not “mention[ing] the existence of the

“Ohio School Facilities Commission,” but fails to show how the commission's existence impacts

this controversy. Second, Ingle-Barr faults the trial court for not addressing the fact that Eastern

is “the legal and beneficial owner” of properties on which it was contracted to make

improvements. While that may indeed be the case, we fail to see how that ownership alters the

fact that Eastern is not a party to the contract.

{¶ 11} Ingle-Barr further challenges the trial court’s decision for not taking into account

several Ohio Court of Claims decisions. First, the trial court is not bound by such decisions.

See, generally, Tschantz v. Ferguson (1989),

,

; Freeman v.

Holzer Medical Ctr. (Mar. 27, 1992), Gallia App. No. 91 CA 8. Second, even if Court of

Claims decisions are binding, Ingle-Barr does not explain how they contradict the trial court's

decision. Ingle-Barr also points out that Eastern’s name appears many times in various other

documents that relate to the construction. While that may be true, we fail to see how this rebuts

either the clear language that specifies that the contracts are between Ingle-Barr and the State of

Ohio, or the Civ.R. 56(C) evidentiary materials that show that Eastern is not a party to the

contracts.

{¶ 12} For these reasons, we hereby overrule Ingle-Barr’s assignment of error and affirm

the trial court's judgment.

JUDGMENT AFFIRMED.

JUDGMENT ENTRY PIKE, 10CA808 & 10CA809 6

It is ordered that the judgment be affirmed and that appellee recover of appellant costs

herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Pike County

Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

Kline, J. & McFarland, J.: Concur in Judgment & Opinion For the Court

BY: Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.