![]() ![]() The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. SAID ERROR IS REFLECTED IN THE ORDER ENTERED BY THE COMMON PLEAS COURT ON AUGUST 26, 1997. THE COMMON PLEAS COURT OF PERRY COUNTY, OHIO ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS. Kalkreuth timely filed its notice of appeal and sets forth the following assignment of error for our consideration: On August 26, 1997, the trial court granted the motion to strike and also granted summary judgment in favor of Bogner and Ohio Farmers. Thereafter, Bogner and Ohio Farmers filed a motion to strike various portions of the affidavit of Kalkreuth's vice-president, James J. Kalkreuth filed a response on August 1, 1997. Bogner and Ohio Farmers filed a joint motion for summary judgment on July 18, 1997. The complaint also asserts a claim against Bogner's surety, Ohio Farmers, under the payment bond issued by Ohio Farmers. In turn, Bogner paid Kalkreuth $345,233.44, but withheld $14,384.54 from Kalkreuth's final draw pursuant to the "pay-if-paid" clause contained in the subcontract.ĭue to Bogner's withholding of $14,384.54, Kalkreuth filed its complaint on September 30, 1996, alleging Bogner breached its subcontract with Kalkreuth by failing to pay the full amount of the subcontract price. ![]() However, Bogner experienced difficulties with a number of its subcontractors, which contributed to project delays and the prevention of the project's timely completion.Īs a result of these problems, the School District refused to pay Bogner the full contract price and withheld retainages totaling $36,695.33 from Bogner's final draw. The substantial completion date for Bogner's general trades work was July 1, 1993. Subcontractor expressly acknowledges that Subcontractor may never be paid in full, or at all, to the extent Contractor is not paid by the Owner. This provision does not merely set forth the time at which payment must be made to the Subcontractor. The parties to this purchase order specifically acknowledge and agree that a condition precedent to the obligation of the Contractor to pay Subcontractor is the payment to Contractor by Owner of monies due. Paragraph four of the subcontract is at issue on appeal. Under the terms of the contract, Kalkreuth agreed to perform all work and furnish all materials necessary to complete the roofing and sheet metal work on the project. On April 29, 1992, Bogner entered into a subcontract with Kalkreuth. Ohio Farmers was Bogner's surety and bonding company and issued the payment bond pursuant to R.C. Bogner and the School District entered into the prime construction contract on March 31, 1992. The Southern Local School District ("School District") owned the project. ("Kalkreuth") appeals the AugEntry of the Perry County Court of Common Pleas granting summary judgment in favor of defendants-appellees Bogner Construction Company ("Bogner") and Ohio Farmers Insurance Company ("Ohio Farmers").īogner was the general trades prime contractor on a public improvement involving the construction and completion of a new elementary and middle school facility in Hemlock, Ohio. Plaintiff-appellant Kalkreuth Roofing Sheet Metal, Inc. ![]()
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