Jerome Claeys, Iii v. Bowser-Morner, Inc., 97-LW-1928

CourtUnited States Court of Appeals (Ohio)
PartiesJEROME CLAEYS, III, et al., Plaintiffs-Appellees v. BOWSER-MORNER, INC., Defendant-Appellant Case
Docket Number97-LW-1928,16196
Decision Date03 July 1997

JEROME CLAEYS, III, et al., Plaintiffs-Appellees

BOWSER-MORNER, INC., Defendant-Appellant

No. 16196

97-LW-1928 (2nd)

Court of Appeals of Ohio, Second District, Montgomery

July 3, 1997

T.C. Case No. 95-4445

Michael P. McNamee, S. C. Regis. No. 00443861, and Deborah A. Millum, S.C. Regis. No. 0055995, O'DIAM, TURNER, McNAMEE, HILL & STONE CO., L.P.A., 360 National City Center, 6 North Main Street, Dayton, OH 45402-1908, Attorneys for Defendant-Appellant

Charles J. Faruki, S.C. Regis. No. 0010417, and Paul L. Horstman, S.C. Regis. No. 0010452, FARUKI GILLIAM & IRELAND, P.L.L., 600 Courthouse Plaza, S.W., 10 North Ludlow Street, Dayton, OH 45402,

Attorneys for Plaintiffs-Appellees



Boswer-Morner, Inc. ("Bowser") appeals the trial court's grant of partial summary judgment in favor of Jerome Claeys, III, John S. Lillard, Norman Perlmutter, Steven Perlmutter, and Charles H. Wurtebach, the trustees of a trust known as JMB Group Trust, I ("JMB").


JMB is the owner of the Dayton Mall. In 1994, JMB decided to construct a JC Penny anchor store at the Dayton Mall. JMB contracted with Woolpert Consultants ("Woolpert") to assist it in obtaining bids or negotiated proposals for the construction of the JC Penny store. Bowser submitted a bid to perform the soil testing on the project. Art Harden, a Woolpert employee, contacted Dennis Ream, a Bowser employee, on June 10, 1994, to inform Bowser that it had been chosen to perform the soil testing on the JC Penny project. Mr. Harden provided Mr. Ream with the project's specifications with regard to the scope of the soil compaction testing and inspection work to be done by Bowser, and asked Mr. Ream to provide him with a fee schedule and estimate for Bowser's services.

Mr. Ream faxed the fee schedule and estimate to Mr. Harden on June 13, 1994. On June 15, 1994, Bowser mailed Mr. Harden a hard copy of the fee schedule and estimate that it had faxed on June 13, 1994, along with a copy of Bowser's standard contract for testing and observation services appended to the fee schedule and estimate. The cover letter sent with the documents did not alert the reader that Bowser had attached its standard contract to the documents. Mr. Harden forwarded the June 15th mailing to Mr. Porter, the Vice President of JMB, without reviewing the contents of the mailing.

Mr. Porter received the forwarded documents on June 20, 1994. Mr. Porter claims that he was unaware that a contract was included with the fee schedule and estimate. He maintains that he merely performed a cursory review of the fee schedule and estimate to make sure that the figures in the mailed fee schedule and estimate were the same as those that Bowser had faxed him on June 13, 1994. After confirming that the figures were identical, Mr. Porter claims that he filed the information without knowledge of the contract. Hence, the contract was never signed and returned to Bowser.

On the same day, without mentioning the June 15th mailing and Bowser's enclosed contract, Mr. Porter faxed Mr. Ream a letter specifically accepting Bowser's June 13, 1994, proposal. Mr. Porter also mailed a hard copy of the acceptance of the proposal to Bowser. The letter provided the following:

This letter will serve as JMB's acceptance of Bowser-Morner's June 13, 1994 proposal to provide testing and inspection services for the site work to be performed by the Miller Brothers Excavating in conjunction with the Dayton Mall Expansion. Based on this proposal, Bowser-Morner will be compensated in the amount not to exceed $29,465.00, such payment to be based on itemized invoices submitted to this office

As discussed in the preconstruction meeting of June 15, Bowser-Morner is to begin their work at once, Woolpert Engineering will be responsible for notifying Bowser-Morner as to when inspection and testing services will be required.

Bowser received the hard copy of the letter on June 27, 1994. That same day, Bowser began performing the soil testing and observation services for the JC Penny project. Specifically, Bowser conducted on-site observations, took soil samples, and performed laboratory tests on the new soil fill. Based upon the results of these tests and observations, Bowser issued a report certifying that the new soil fill, as installed and compacted, met the project's specifications as to, among other requirements, the percentage of maximum density and moisture control requirements.

On September 15, 1994, Charles Wollenhaupt, an employee of Bowser, sent a letter to Mr. Porter requesting an additional $20,000 to complete the testing and observation services for the project. On September 22, 1994, Mr. Porter faxed and mailed a letter, approving the additional expense.

The construction of the JC Penny building began on September 27, 1994. By November of 1994, significant portions of the construction project had been completed: the building site had been filled with soil and graded; the building footings had been constructed and installed; a substantial portion of the building slab had been poured; two floors of structural steel had been erected; and the parking lot had been graded and paved. On November 16, 1994, the soil fill allegedly settled when it was exposed to moisture. The settling of the fill purportedly caused three adjacent column footings to recede as much as 2.5 inches. In addition, according to JMB, a portion of the parking lot began to buckle and subside in February of 1995.

On December 2, 1994, Mr. Porter sent a letter to Bowser stating that "it was discovered an agreement between Bowser-Morner and JMB was not executed." Mr. Porter included JMB's standard contract in the letter and requested that Bowser execute the contract. On January 17, 1995, Timothy Stanley, Bowser's Corporate Risk Manager, sent a letter to JMB stating that Bowser considered JMB's acceptance of June 20, 1994, to be an acceptance of the terms and conditions of its standard form of contract.

On January 31, 1995, Mr. Porter had a conversation with Mr. Stanley concerning Bowser's refusal to sign JMB's standard contract. Mr. Porter informed Mr. Stanley that JMB did not consider itself to be bound by Bowser's contract. Mr. Porter further explained that it was JMB's practice to use its own standard contract and that JMB's failure to send Bowser its standard contract earlier was a clerical error. Mr. Porter also conveyed to Mr. Stanley that any objectionable clauses of JMB's contract were possibly open for negotiation. Despite Mr. Porter's attempt to make JMB's standard contract mutually agreeable, however, Bowser remained steadfast in its refusal to sign JMB's contract.

On December 15, 1995, JMB brought an action against Bowser alleging breach of contract, breach of express warranty, negligence, and negligent misrepresentation. Bowser filed a demand for arbitration and application to stay JMB's action on the basis that JMB had accepted Bowser's standard contract which contained an arbitration clause. Pursuant to R.C. 2711.03, the trial court stayed JMB's action pending a determination as to whether an arbitration agreement was part of the contract between the parties. JMB filed a motion for partial summary judgment on that issue. In resolving the summary judgment motion, the court considered whether there was a genuine issue of fact as to whether JMB had expressly or impliedly assented to Bowser's standard contract, containing an arbitration clause, which Bowser included in its June 15th mailing to JMB. The trial court granted JMB's motion on October 14, 1996, finding that there were no genuine issues of fact in dispute and that, as a matter of law, the parties did not mutually assent to Bowser's contract containing the arbitration clause. Bowser now brings this timely appeal of that determination.


In its first assignment of error, Bowser argues that:


A. The record before the trial court demonstrates numerous genuine disputes of material fact.

Bowser first argues that the trial court erred in granting summary judgment in favor of JMB because the parties disputed several material issues of fact. Bowser avers that there was a genuine issue of material fact as to whether the parties mutually assented to the terms of its standard contract. More specifically, Bowser contends that there is factual dispute as to whether the parties through their conduct and course of performance mutually assented to its contract.

Our review of a trial court's decision to grant summary judgment is de novo. Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 129, 572 N.E.2d 198. Summary judgment is only appropriate when there is 1) no genuine issue of material fact; 2) the movant is entitled to judgment as a matter of law; and 3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. Civ.R. 56(C); Harless v. Willis Day Warehousing Co. (1979), 54 Ohio St.2d 64, 8 Ohio Op.3d 73, 375 N.E.2d 46. All competing inferences and evidence must be construed in favor of the non-moving party in deciding a motion for summary judgment. Civ.R. 56(E); Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 256.

In construing the evidence in a light most favorably to Bowser, we cannot find that there is a genuine issue of fact that would need to be resolved in order to determine whether the parties mutually assented to the terms of Bowser's standard contract. The parties' recitation of the facts bearing on the issue of mutual assent are essentially in accord. Both parties agree that Bowser was informed that its bid had been accepted on June 10, 1994. The parties are also in assent as to the date that Bowser faxed its fee schedule and estimate to Woolpert and agree that...

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