COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67131 HUNTER BUILDING & RENOVATION : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL D. MILLER, ET AL. : : PER CURIAM : Defendants-appellants : DATE OF ANNOUNCEMENT : OF DECISION : FEB. 15, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 181210 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE ARCO HEATING & AIR CONDITIONING CO.: Gregory J. Lavelle, Esq. 1370 Ontario, Suite 330 Robert I. Chernett, Esq. Cleveland, Ohio 44113 One Cleveland Center, 20th Floor Cleveland, Ohio 44114 FOR PLAINTIFF-APPELLEE HUNTER BUILDING & RENOVATION: FOR DEFENDANT-APPELLEE FIRST P.O. Box 93543 FEDERAL SAVINGS BANK: Cleveland, Ohio 44101 Howard Eisenhart, Esq. Robert Belovich, Esq. 1215 Superior Avenue 5638 Ridge Road Cleveland, Ohio 44114 Cleveland, Ohio 44129 FOR DEFENDANT-APPELLEE AMPERE: Unrepresented 1712 Gladwin Mayfield Heights, Ohio 44124 -2- PER CURIAM: This case is an accelerated calendar appeal taken from the final judgment entry of the Court of Common Pleas of Cuyahoga County, pursuant to App.R. 11.1 and Loc. App. R. 25. The purpose of an accelerated appeal is to allow an appellate court to render a brief and conclusionary decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Michael Miller, plaintiff-appellant ("appellant"), seeks reversal of the trial court's decision granting summary judgment in favor of defendants-appellees, Arco Heating and Air Conditioning ("Arco"), Ampere Electric ("Ampere"), and First Federal Savings & Loan ("First Federal"). Appellant submits that genuine issues of material fact remain for litigation with regard to his claim that he was an intended third-party beneficiary. A careful review of the record compels affirmance. I. This matter stems from a contract between plaintiff- appellee, Hunter Building & Renovation ("Hunter"), appellant, and First Federal for the construction of a commercial building in Maple Heights. Appellant hired Hunter as the general contractor for the project. Hunter in turn hired Arco and Ampere, in addition to other subcontractors. After the project was started, the soil beneath the foundation of the building shifted, causing serious problems to the structure of the building. Appellant refused to pay Hunter for its work, and as a result, Hunter filed a foreclosure and lien action against appellant and - 2 - First Federal. Appellant responded by filing a complaint against the parties. Additionally, appellant filed a defendant third- party complaint against the following parties: (1) Richard A. Beck Associates (architect), (2) Robert Ostergard and Michael Ayers (officers of Hunter), (3) Glo-Mar Masonry (subcontractor), (4) Arco Heating and Air Conditioning (subcontractor), (5) Ampere Electric (subcontractor), and (6) Kirkpatrick Excavating (subcontractor). At the conclusion of settlement negotiations, the only remaining parties consisted of: Arco, Ampere, Kirkpatrick Excavating Corp., First Federal, appellant, and Cynthia Miller. Arco, Ampere, and First Federal filed motions for summary judgment, respectively. Appellant filed a motion for leave to file an amended third-party complaint, which was granted by the trial court. Appellant filed a memorandum in opposition to Arco's motion for summary judgment. After the trial court set a deadline for dispositive motions, appellant was granted an extension of time to respond to the motions for summary judgment. Appellant, next, filed a supplemental memorandum in opposition to the motion for summary judgment by Ampere and Arco. However, the trial court ruled in favor of Arco, Ampere and First Federal and granted their motions for summary judgment. Appellant timely appeals. II. Appellant presents the following assignments of error: - 3 - I. THE COURT OF COMMON PLEAS ERRED IN GRANTING A MOTION FOR SUMMARY JUDGMENT TO FIRST FEDERAL SAVINGS BANK (FIRST FEDERAL) ON THE THEORY THAT IT HAD THE CONTRACTUAL RIGHT TO MAKE PAYMENTS WITHOUT THE CONSENT OF APPELLANT WHERE THE CONDITIONS PRECEDENT TO THE RIGHTS TO MAKE SUCH PAYMENTS WERE NOT SATISFIED. II. THE COURT OF COMMON PLEAS ERRED IN GRANTING MOTIONS FOR SUMMARY JUDGMENT IN FAVOR OF AMPERE ELECTRIC (AMPERE) AND ARCO HEATING AND AIR CONDITIONING (ARCO) ON THE SOLE PREMISE THAT APPELLANT WAS NOT AN INTENDED THIRD PARTY BENEFICIARY TO A CONTRACT BETWEEN SAID ENTITIES AND HUNTER BUILDING AND RENOVATION (HUNTER) WHERE: A. ARCO AND AMPERE WORKED DIRECTLY FOR APPELLANT AND WERE PAID FROM THE FUNDS OF APPELLANT AFTER HUNTER WAS DISMISSED. B. ARCO AND AMPERE WERE NEGLIGENT AND CAUSED DAMAGE TO THE PROPERTY OF APPELLANT. C. ARCO FAILED TO DELIVER PROPERTY OF APPELLANT AND WAS UNJUSTLY ENRICHED. D. APPELLANT WAS AN INTENDED THIRD PARTY BENEFICIARY OF THE ORIGINAL CONTRACT BETWEEN HUNTER AND SAID ENTITIES. III. A. The granting of summary judgment is only appropriate if there is no genuine issue as to any material fact, and reasonable minds can come to but one conclusion which is adverse to the non-moving party. Toledo's Great Eastern Shoppers City, Inc. v. Abde's Black Angus Steak House No. III, Inc. (1986), 24 Ohio St.3d 198, 201; Civ.R. 56(C). An order granting summary judgment - 4 - will, therefore, only be upheld where the record disclose no genuine issue of material fact and the non-moving party is entitled to judgment as a matter of law when construing the evidence most strongly in favor of the non-moving party. Johnson v. New London (1988), 36 Ohio St.3d 60; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. The factual dispute must be "material," i. e., the facts involved must have the potential to affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. Moreover, the issue to be tried must be "genuine," and one which would allow reasonable minds to return a verdict in favor of the non-moving party. Id., 477 U.S. at 248-252, 106 S.Ct. at 2510-2512, 91 L.Ed.2d at 211-214. Summary judgment is a procedural device which is used to terminate litigation and, therefore, must be awarded with caution and with all doubts resolved in favor of the non-moving party. Osborne v. Lyles (1992), 63 Ohio St.3d 326. Summary judgment forces the non-moving party to produce evidence on any issue for which that party bears the production at trial. Wing v. Anchor Media, Ltd. Texas (1991), 59 Ohio St.3d 108; Celotex v. Catrett (1986), 477 U.S. 317, 322-323. See, also, Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 113. It is incumbent upon appellant to produce evidence that would cause reasonable minds to differ as to a material fact of the case. Civ.R. 56. B. - 5 - In appellant's first assignment of error, appellant attacks the trial court's granting of summary judgment in favor of First Federal. Appellant's assignment of error is moot. On August 2, 1994, First Federal was dismissed from this appeal pursuant to Motion No. 54270, by an agreement between appellant and First Federal with prejudice at appellant's cost. See, Vol. 0362, Pg. 0228. In appellant's second assignment or error, appellant charges the trial court erred when it granted Ampere and Arco's motion for summary judgment when there remained genuine issues of fact for litigation as to appellant's claim that Ampere, Arco and Hunter intended appellant to be a third-party beneficiary of their contracts. Appellant further asserts the trial court erred when it failed to consider that Arco and Ampere worked directly for appellant. Arco and Ampere maintain the trial court did not err when it ruled in their favor and granted summary judgment, as a matter of law, as appellant failed to produce sufficient evidence to show there existed a genuine issue of material fact for litigation as to appellant's claim that he was an intended third-party beneficiary of the parties' contract. In the instant case, the trial court found that appellant's benefit through the performance of the contracting parties was incidental. Moreover, the court found that an owner is only an incidental beneficiary of a subcontract between a general contractor and subcontractor and cannot sue for breach of the - 6 - subcontract. An action for breach of contract by a third party can be brought only where the parties to a contract intended to benefit the third party. Construction Advancement Program v. A. Bentley & Sons Co. (1975), 45 Ohio App.2d 13, 17. The Supreme Court in Hill v. Sonitrol of Southern Ohio (1988), 36 Ohio St.3d 36, 40, addressed the difference between "incidental" and "intended" third -party beneficiaries when deciding whether a third party who lacks contractual privity is entitled to enforce the terms of the contract. The supreme court concluded that an intended third-party beneficiary has enforceable rights under the contract only when the contracting parties expressly intend that a third party should benefit from the contract. Moreover, if the parties to the contract have not intended to benefit a third party, then a third party can be, at most, an incidental beneficiary who has no enforceable contractual rights. Hill, supra. There must be evidence that the promisor assumed a duty to the third party. Trinova Corp. v. Pilkington Bros., P.L.C. (1994), 70 Ohio St.3d 271. In the case sub judice, appellant asserts he was an intended third-party beneficiary. Appellant was required to produce evidence sufficient to establish that he was an intended third- party beneficiary of the contracting parties. With respect to the contract between Arco and Hunter, appellant did not produce evidence to demonstrate that Arco and Hunter intended appellant to be an intended third-party beneficiary of their contract, - 7 - therefore appellant failed to satisfy the evidentiary burden mandated by Wing, and Celotex, supra. After reviewing the documentation between Arco and Hunter, we agree with the trial court that there was no genuine issue of material fact raised as to whether Arco and Hunter intended appellant to be a third-party beneficiary of their contract. Similarly, we agree with the trial court's well-reasoned Decision and Order which noted appellant did not produce evidence sufficient to prove his claim that he was an intended third-party beneficiary of the contract between Ampere and Hunter, as he was required by Wing, and Celotex, supra. Appellant failed to produce evidence to the court regarding his claim that Arco and Ampere worked directly for him, thus appellant failed to show the existence of genuine issues of material fact as to his claim. Furthermore, the trial court did not err when it granted Arco and Ampere's motion for summary judgment and dismissed appellant's claim for relief for negligence, conversion, unjust enrichment pursuant to appellant's theory that he was an intended third-party beneficiary. The affidavit appellant supplied to the trial court was appellant's own affidavit. Appellant's affidavit contained general conclusions and allegations and not specific facts relating to his claim of negligence, conversion and unjust enrichment. The trial court correctly ruled that appellant's affidavit, which was filed in support of his supplemental memorandum in opposition to the motion for summary judgment of Ampere and Arco, was inadmissible for summary judgment purposes - 8 - pursuant to Civ.R. 56(E); Stibora v. Greater Cleveland Bowling Assn. (1989), 63 Ohio App.3d 107. Here, appellant failed to set forth evidence demonstrating the existence of specific facts showing a genuine issue for litigation. Teamster's Housing, Inc. v. City of East Cleveland (1987), 36 Ohio App.3d 83. The trial court correctly ruled appellant's affidavit failed to meet the burden of opposing summary judgment pursuant to Civ.R. 56(E). The trial court properly granted judgment in favor of Arco and Ampere. Appellant's second assignment of error is overruled. Judgment affirmed. - 9 - It is ordered that appellees recover of appellant their 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 Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, PRESIDING JUDGE JAMES M. PORTER, JUDGE ANN DYKE, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate .