[Cite as Perk v. Tomorrows Home Solutions, L.L.C., 2016-Ohio-7784.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 104270

JAMES PERK 

PLAINTIFF-APPELLANT 

vs. 

TOMORROWS HOME SOLUTIONS, L.L.C., D.B.A. 

OHIO BASEMENT SYSTEMS 

DEFENDANT-APPELLEE 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-14-825765 

BEFORE: Keough, P.J., E.T. Gallagher, J., and Stewart, J. 

RELEASED AND JOURNALIZED: November 17, 2016 
ATTORNEY FOR APPELLANT 

Daniel S. White 

34 Parmalee Drive 

Hudson, Ohio 44236 

ATTORNEYS FOR APPELLEE 

Scott A. Norcross 

Melanie R. Irvin 

Gallagher Sharp 

Sixth Floor, Bulkley Building 

1501 Euclid Avenue 

Cleveland, Ohio 44115
KATHLEEN ANN KEOUGH, P.J.: 

{¶1} Plaintiff-appellant, James Perk (“Perk”), appeals from the trial court’s 

judgment granting summary judgment in favor of defendant-appellee, Tomorrows Home 

Solutions L.L.C., d.b.a. Ohio Basement Systems (“THS”), on its counterclaim. Finding 

no merit to the appeal, we affirm. 

 I. Background 

{¶2} In April 2014, Perk filed suit against THS. Perk’s complaint alleged that 

he had entered into a contract to pay THS $9,450 for foundation repair services at his 

home, that THS performed its services in a shoddy and unworkmanlike manner, and that 

as a result of THS’s failure to honor its extended warranty, he would be required to incur 

additional expense to repair THS’s defective work. THS answered the complaint, and 

filed a counterclaim against Perk for $6,450 due under the contract. 

{¶3} THS subsequently filed a motion for summary judgment on its 

counterclaim. Perk then dismissed his claims against THS without ever filing a brief in 

opposition to THS’s motion. The trial court granted THS’s motion for summary 

judgment on its counterclaim against Perk, and this appeal followed. 

 II. Law and Analysis 

{¶4} In his single assignment of error, Perk contends that the trial court erred in 

granting THS’s motion for summary judgment. 

{¶5} Civ.R. 56(C) provides that summary judgment is appropriate when (1) there 

is no genuine issue of material fact, (2) the moving party is entitled to judgment as a 
matter of law, and (3) after construing the evidence most favorably for the party against 

whom the motion is made, reasonable minds can reach only a conclusion that is adverse 

to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 

369-370, 696 N.E.2d 201 (1998); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 

364 N.E.2d 267 (1977). We review the trial court’s judgment de novo, using the same 

standard that the trial court applies under Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 

Ohio St.3d 102, 105, 

671 N.E.2d 241 (1996). 

{¶6} It is well established that the party moving for summary judgment bears the 

burden of demonstrating that no material issues of fact exist for trial. Dresher v. Burt, 75 

Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). The moving party bears the initial 

responsibility of informing the trial court of the basis for the motion, and identifying those 

portions of the record that demonstrate the absence of a genuine issue of fact on a 

material element of the nonmoving party’s claim. Id. The nonmoving party has a 

reciprocal burden of specificity and must set forth specific facts by the means listed in 

Civ.R. 56(C) showing that there is a genuine issue for trial. Id. The reviewing court 

evaluates the record in a light most favorable to the nonmoving party. Saunders v. 

McFaul, 71 Ohio App.3d 46, 50, 593 N.E.2d 24 (8th Dist. 1990). Any doubts must be 

resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 

358-359, 604 N.E.2d 138 (1992). 
{¶7} Perk contends that the trial court erred in granting summary judgment to THS 

on its counterclaim because THS’s counterclaim was brought by an entity that was not a 

party to the litigation. Specifically, Perk contends that he sued “Tomorrows Home 

Solutions, L.L.C., d.b.a. Ohio Basement Systems,” but the contract attached to THS’s 

counterclaim, pursuant to which THS claimed monies owed under the contract, identified 

THS as “Tomorrows Home Solutions d/b/a Ohio Basement Systems,” without any 

reference to the L.L.C. Thus, Perk contends that this entity is not the entity with whom 

he contracted and that he subsequently sued. Perk’s argument is without merit. 

{¶8} First, it is well established that a litigant’s failure to raise an argument in the 

trial court waives the litigant’s right to raise the issue on appeal. Foster v. Wells Fargo 

Fin. Ohio, Inc., 195 Ohio App.3d 497, 2011-Ohio-4632, 960 N.E.2d 1022, ¶ 24. Perk 

did not file a brief in opposition to THS’s summary judgment, and did not raise the issue 

of alleged improper party at any other point in the proceedings. Accordingly, he cannot 

raise the issue here for the first time on appeal. 

{¶9} Moreover, even if not waived, Perk’s argument lacks merit. Paragraph three 

of Perk’s complaint states that on October 12, 2013, he and THS “entered into an 

agreement * * * which is attached hereto and incorporated as Exhibit A.” (Emphasis 

added.) The agreement attached to Perk’s complaint as Exhibit A identifies THS as 

“Tomorrows Home Solutions dba Ohio Basement Systems,” without any reference to an 

L.L.C. designation. This same agreement, which Perk’s complaint acknowledged was 

the agreement between him and THS, was attached to THS’s answer and counterclaim. 
Accordingly, there is no genuine issue of material fact that the THS that brought the 

counterclaim is the same entity with whom Perk contracted and later sued. 

{¶10} Furthermore, we find no legal authority for Perk’s implied proposition that a 

limited liability company must always use the L.L.C. designation on its corporate 

documents in order for a contract with that company to be valid. Indeed, one court 

considering an analogous situation has found that the omission of a corporate name 

indicator in business dealings subsequent to the original articles of incorporation 

submitted to the Ohio Secretary of State is insignificant. In Promotion Co. v. Sweeney, 

150 Ohio App.3d 471, 2002-Ohio-6711, 782 N.E.2d 117 (7th Dist.), the Seventh District 

considered whether a company’s failure to place “Inc.” after the company name in a 

contract violated Ohio law such that the president of the company, who signed the 

contract, was personally liable. The court found that corporate name indicators (such as 

“company,” “incorporated,” “corporation,” or the abbreviations for these words) must be 

included with the original corporate papers submitted to the secretary of state, but that 

“the omission of a corporate name indicator in subsequent business dealings does not 

extinguish the existence of a corporation and place personal liability on the representative 

who signs a contract for the company.” Id. at ¶ 20. Accordingly, the fact that THS did 

not use the L.L.C. designation on its contract with Perk is not dispositive of the validity of 

the contract between him and THS. 

{¶11} Finally, we find no genuine issue of material fact to preclude summary 

judgment in favor of THS. Perk acknowledged that the agreement attached to his 
complaint as Exhibit A was the contract between him and THS, the entity he sued. The 

contract reflects that Perk agreed to pay THS $9,450 for its work; that he paid a $3,000 

deposit; and that a balance of $6,450 was due upon completion. Because Perk did not 

respond to THS’s motion for summary judgment, there is no evidence in the record to 

create a factual dispute regarding THS’s counterclaim for Perk’s failure to pay the 

amount due. Accordingly, the trial court properly granted summary judgment in favor of 

THS on its counterclaim. The assignment of error is therefore overruled. 

{¶12} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said 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. 

KATHLEEN ANN KEOUGH, PRESIDING JUDGE 

EILEEN T. GALLAGHER, J., and 

MELODY J. STEWART, J., CONCUR